Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County Nos. MCR026495, MCR023496, John W. DeGroot, Judge.
Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
Defendant Joe Norbert Mata was convicted of stalking. On appeal, he contends (1) there was insufficient evidence that he stalked the victim (V.) when a restraining order was in effect and (2) the trial court erred by failing to instruct on unanimity. We will affirm.
PROCEDURAL SUMMARY
Case No. MCR023496
On December 9, 2005, the Madera County District Attorney charged defendant with misdemeanor battery of V. (Pen. Code, § 243, subd. (e)(1)). Defendant pled not guilty, but on June 27, 2006, he agreed to plead no contest in exchange for a one-year deferral of sentencing, with the understanding that the charge would be dismissed at that time if, during that year, he had “obey[ed] all laws, stay[ed] away from the victim and attend[ed] mental health counseling to the satisfaction of the Behavioral Health Department.”
All statutory references are to the Penal Code unless otherwise noted.
Case No. MCR026495
On October 3, 2006, the Madera County District Attorney charged defendant with stalking V. (§ 646.9, subd. (b), a felony). The information further alleged that defendant was subject to a temporary restraining order at the time he committed the behavior, which was prohibited by the order. A jury found defendant guilty and the court sentenced him to the upper term of four years in prison. In case No. MCR023496, the court sentenced defendant to one day in jail with credit for time served.
Defendant appealed both cases, but his request for a certificate of probable cause in case No. MCR023496 was denied. All issues discussed here arose from case No. MCR026495.
FACTS
V. and defendant began a relationship in late 1999. One evening in 2002, when they were living together in Riverside, they went to a small family celebration at a restaurant, where they consumed alcoholic beverages. Defendant left to get some tequila and he invited the grocery store cashier back to the restaurant with him. Defendant ignored V. the rest of the evening and spoke only to the cashier. When V. said she wanted to go home, he told her he would take the cashier home and come back for her. Three hours later, at about 11:00 p.m., V. walked home. She found defendant asleep in bed. When she woke him up, he yelled at her and slapped the top of her thigh, leaving a handprint on her skin. He got on top of her, but she got away and ran downstairs. She believed he intended to strike her. When she called 911, defendant grabbed her by the hair and took the telephone away. He pulled it out and threw it on the floor. V. ran outside, but defendant grabbed her by the hair again, struck her twice in the face with his knee and pushed her onto a woodpile. He then ran inside and woke up his daughter, who was sleeping in the living room, and they left.
Defendant told V. the incident was her fault. If she had not awoken and surprised him, none of it would have happened. She felt guilty and suffered a deep depression. Defendant said she could stay in his house if she would withdraw the charges against him. She had four children and nowhere else to go, so she agreed.
V. stayed with defendant and eventually became pregnant. The situation became worse because defendant wanted V. to have an abortion and she refused.
All the years they were together, V. worked with defendant in construction. One day, while she was pregnant, they were putting on a tile roof. V. was on the roof and defendant was tossing the tiles up to her. Defendant started to throw the tiles directly at her stomach. He got angry when V. started to drop the tiles she was holding. V.’s sister, who was visiting, yelled at defendant. She said, “are you crazy, are you trying to kill her child[?]” She called him an animal.
V.’s sister told V. to get off the roof. She told V. she did not have to put up with this and she asked V. to stay with her. V. and her four children went to the sister’s apartment in Orange County, but it was very crowded. A few days later, defendant told V. he had behaved badly and he wanted to be forgiven. He cried and told her she and the children were all the family he had. He swore he would never mistreat her again and he promised to love the baby they were about to have. V. did not entirely believe defendant, but she could not continue to live at her sister’s apartment, so she returned to defendant’s home. After the baby (henceforth, the little girl) was born in May 2003, however, things went back to the way they had been.
One day, defendant’s aunt called and convinced defendant and V. to move to Madera because things had been going well for her there. V. believed it was an opportunity for them to start over. In April 2004, they moved in with defendant’s aunt and uncle in Madera.
V. continued to help defendant with construction jobs. She hoped they could make enough money to buy their own house. Defendant collected the income but gave none of it to V. He demanded that she work every day and he told her he was not going to support the “slobbers” of someone else, referring to her children. Whenever anything went wrong at work or at home, he told her it was her fault. He treated her this way every day. At the end of 2004, they moved into a house.
Sometime in 2005, when V. and defendant were building a roof, defendant told her a nail gun can kill people. Then he fired a nail at her feet. It missed, but she took it as a threat and was frightened. She believed he was threatening to kill her.
On the morning of June 10, 2005, V. and defendant began to argue. He yelled at her and called her a whore. He asked her if she wanted to be “running around the streets sucking dicks.” She ran to the car and they fought for the keys. Defendant twisted her arm until she could not endure the pain and she relinquished the keys. Defendant called her a whore again. He said she still had not learned who was in charge and he was going to show her. He said, “[Y]ou fuckin’ Mexican, go back to your own country.” She got out of the car and he laughed at her and started to leave in the car. She approached because she wanted to get some things from the car. Defendant got out, threw her into the back seat and put his knee on her chest. He put all his weight on her. She tried to get up and he grabbed her neck with both hands. She could not breathe, so she scratched his face. He laughed and told her he was going to call the police. When the police came, she showed them her neck and they arrested defendant. V. obtained an emergency protective order against defendant.
V. began packing her things. Within a week, defendant was out of jail and back at the house. V. continued to move her things. As she walked by him, he grabbed the back of her pants and refused to let go. V.’s son and her sister-in-law intervened and yelled at defendant to let her go. V. did not report this incident.
After V. moved, defendant repeatedly went by the house. He constantly followed her. He even knew what she ate. He repeatedly called the authorities to tell them the children were in danger because V. was drunk or striking the children. The authorities repeatedly came to check on V. and question the children. For example, on July 2, 2005, an officer responded to a call regarding the welfare of the little girl, alleging that V. was drunk, depressed and on prescription drugs. When the officer arrived at the house, he found V. to be fine. She was not drunk, depressed or on drugs, and the little girl was fine. During July 2005, defendant called V. repeatedly, sometimes to insult her and sometimes to request a reunion. V. asked him to stop calling her.
On December 9, 2005, defendant was charged with misdemeanor battery on the June 10, 2005 choking incident.
V. believed defendant made false accusations and statements to other people that caused her to be fired from her job, her landlord to evict her and her brother to lose his car. At this point, defendant found them a rental house in Oakhurst. He told V. he would not live with her or bother her there. V. agreed out of necessity and she moved to Oakhurst at the end of the summer in 2005. Defendant rented the garage for his tools and V. paid him for the remainder of the rent. Almost immediately, defendant started staying at the house. He eventually moved into the house and refused to leave. He continued to threaten V. One day in March 2006, when defendant was going to strike her, she called 911 again. A sheriff came and told her to leave immediately. She picked up her children from school and found a house to rent that same day.
V. had been seeing a psychologist because she realized she was depressed and could not sleep. She knew she was not the mother she had once been. She started taking medication to sleep and relieve the depression and she was feeling stronger.
When defendant saw V. moving her things, he laughed at her and insisted on helping her by throwing her things into the vehicle. She maintained a calm demeanor so defendant would not become aggressive. After she moved into her new house, defendant came over every day. Sometimes he would hide his car in the orchard and take photographs, watching to see who went in and out of the house. He would walk in the house at any hour, even though she told him he was not welcome. He would say, “[T]he whore, [the] bitch has learned to defend herself and now she has gotten out her nails, hasn’t she.” She did nothing and chose not to call the officers because they would always let defendant go right away. Instead, she told him she did not want to fight and she let him stay.
On April 5, 2006, a detective came to speak to V., asking her whether she wanted to withdraw the charges stemming from the June 2005 choking incident. Defendant glared at her with a threatening look. He sat down by the detective and spoke for V., until she told the detective she needed to speak to him privately. When a translator arrived, V. and the detective spoke for about two hours. They spoke in the car because the detective was nervous about defendant’s aggressive posture. V. told the detective she wanted to press charges because defendant would not leave her alone.
When V. went back into the house, defendant was angry. He was like a wild animal. V. locked herself and the children in her room. Later, when everyone was asleep, defendant came into V.’s room, got on top of her and put his face against hers. He said, “[D]on’t you know that I am your god? Aren’t you afraid of me? … [Y]ou are going to see what’s going to happen to you. You are going to end up without your children. You don’t know where you’re going to end up.” His weight was so great that she could not breathe. He remained on her and breathed in one of her ears and then the other. He put his arms around her and squeezed her; he would not let her move. After a long time, he got up and left. He came back in and said, “[D]o you know why I don’t want to have sex with you? [B]ecause you’re fat. And look at -- and you’re ugly. And you want to have another child, don’t you, so that I can support you? You are going to support me.” He laughed and walked out.
The next morning, on April 6, 2006, he started arguing, calling V. a bitch and a prostitute. He was angry because she would not withdraw the charges. He told her she had made it all up. She refused to feel guilty and she told him, “[T]hat’s fine, do whatever you want.” She walked away and he repeatedly pushed her against the wall. When the little girl started to cry, he picked her up and told her, “[I]sn’t it true that your mother is a bitch. Look at her. [S]he is a bitch, isn’t she? Look at her. She is a piece of shit.” Defendant watched a cartoon for a while, then started arguing again. V.’s brother arrived and realized something was wrong. V. asked him to go with her to buy some chickens. She tried to take the little girl, but defendant refused to allow it. V. and her brother went to a restaurant and drank some beer and ate some food. She told him everything that had been happening. Suddenly, defendant walked in the door “like a crazy man.” He started yelling insults at V. and her brother. He told V.’s brother, “[H]ere you are selling your sister again. [F]uck your mother, piece of shit.” V.’s brother thought defendant was going to strike him. Defendant said to V., “[L]ook little whore. I brought your children.”
According to V.’s brother, speaking ill about someone’s mother is highly offensive in the Latin culture.
When they went outside, defendant said, “Look, your mother can’t even walk, she is so drunk.” V. was not drunk. Defendant sped away with the children and V. went to the sheriff’s station. She explained to the officers that she had rented the house and she showed them the rental agreement she kept in her car. She told the officers she was afraid to go home. V. obtained an emergency protective order, which was to expire at 5:00 p.m. on April 13, 2006. Officers removed defendant from V.’s home and took him to jail. V.’s brother stayed with V. because she was afraid; defendant was a very violent person.
Defendant always told V.’s brother that he had no reason to be around V. Defendant said it was his and V.’s life. He would tell the brother to get out, and sometimes the brother would leave so defendant would not take it out on V. The brother had witnessed defendant saying things to V. to scare her. Defendant would get upset, yell, use foul language and be very aggressive toward V. The brother had seen defendant grab her angrily and push her, even in front of the children or outside the house.
When defendant was released from jail a day or two later, he was back at V.’s house and he was more angry and aggressive than before. He called her, saying “[I]f you don’t let me see my children right now they are going to take your children away.” He said she should not even be in this country. He said he would turn everyone against her.
V. took her children to visit her sister in Orange County. When they came back on April 11, 2006, V. saw defendant’s car in her driveway and she called the sheriff. Defendant refused to let the officers in the house, so they broke down the garage door, entered the house and removed defendant. When V. entered her house, she found her papers in disarray. She believed defendant was looking for anything he could use against her. Defendant had forgotten his binder, which contained, among other things, a list of telephone numbers in defendant’s handwriting. He also left a receipt stating he had sent V. $900 for April. He would make copies of such receipts and mail them to V. “to threaten [her] that he had proof that he was supporting [her].” But she did not receive the money. Apparently, he wired the money in her name and picked it up himself.
Defendant continued to contact V. and the children. On April 13, 2006, defendant called V. throughout the day. It was his birthday and he wanted sex for his present. She reminded him of the restraining order and she told him to stop calling her. She reported the calls to the sheriff. Defendant called other times prior to the end of May 2006 and V. told him to stop calling. After some of the calls, she filed reports. She finally quit answering the telephone.
On April 19, 2006, the court issued a temporary restraining order against defendant, protecting V., her children and her brother. Then, on May 9, 2006, the court held a hearing and issued a restraining order against defendant, which again applied to V., her children and her brother. The order was to be in effect until May 9, 2011.
At this point, V. was even more frightened than ever. When the officers would pick defendant up, they would release him the next day and she would see him walking near her home. When she looked at him, he would point to his eyes to indicate that he was watching her. He passed by her home so often that she put blankets over her front windows. She did not have the money to buy new locks, but she exchanged the garage lock with the front door lock. She was living on the money she had saved and she could not afford to move.
On May 30, 2006, defendant came to V.’s door. He tried to force his way in, while V. held the lock with both hands. He wanted her to open the door. He said, “[T]hings haven’t finished.” He took pictures of the cars’ license plates and left.
V. again took her children to her sister’s home in Orange County. This time, they stayed for over two months, although V. would come back to Madera for court dates.
On June 12, 2006, defendant requested that officers check the welfare of the little girl. When the officer arrived, V. told him her children were in Orange County. On June 15, June 20, and June 27, 2006, defendant again requested that officers check the welfare of the little girl. Each time, when the officer arrived at the house, no one was home.
On June 27, 2006, defendant pled no contest on the misdemeanor battery charge and was ordered to stay away from V.
On June 30, 2006, V. called officers to report that her house had been broken into. The responding officer found the phone line pulled out and the lock on the door damaged.
On July 11, 2006, V. came to Madera for a court date. Defendant was outside the courthouse. He said, “[H]i, V., are you mad today[?]” He laughed as he always did to make fun of her, then he slapped his papers against his hand. He stared at her and took pictures of her. V. filed a report, although she no longer had any faith that it would help. That day, defendant was arrested.
Incident to defendant’s arrest, officers searched his belongings and found a disposable camera. The film contained photographs of V. at the courthouse. The officer who contacted V. that day recalled her statements as “very in depth and very emotional. She [was] very. very much in distress as the victim over this incident and the many instances prior to it.”
V. testified that when she discovered defendant’s sentence for the June 10, 2005 choking incident, she said defendant would kill her or do something to her and maybe someone would name a refuge house in her honor. At the time of the present trial, she believed that if defendant got out of jail, his conduct would continue. But she also felt that she and her family had received the benefit of four months of peace and recuperation while he was in jail.
V.’s 13-year-old son, A., testified that he witnessed defendant saying mean things to V. Defendant would say that they were immigrants who did not belong in this country. He would tell A. that he was going to try to take the children away from V. and put them in a foster home because V. did not deserve them. A. saw defendant push V. a few times and he saw bruises on her arms and chest. When defendant was not supposed to be in the house, A. changed the locks. A. wanted to testify because he did not feel it was right what defendant had done to V.
V.’s 10-year-old son, C., testified that he saw defendant grab V.’s neck. Then a couple of days later, he saw him grab her by the back of her pants. C. told him to let V. go, but he would not. C. yelled at defendant until he released V. C. had heard defendant call V. names and say things to hurt her feelings. Defendant had also offended C. by saying things about him and his dad, causing C. to cry. C. wanted to testify because of all the bad things defendant had done to his family.
Defense Evidence
Various witnesses testified to defendant’s good character and V.’s bad character. Defendant’s ex-wife testified defendant had never been violent or aggressive with her and he had never used a lot of bad language. Defendant’s daughter testified similarly.
Defendant testified that V. had wanted to reconcile and live together before they moved to Oakhurst. Then, defendant decided he had had enough and he did not want to move to Oakhurst with V.
Defendant explained that he took photographs of V. because she had discarded all his memorabilia and he wanted a photograph of her. He said he was the “paparazzi of the family,” but he never spied on the family. He paid for rent and supported the family. V. had never told him she was afraid of him. The first he heard of that was at trial.
DISCUSSION
I. Sufficiency of the Evidence
Defendant contends there was no evidence he made a threat, express or implied, against V. at any relevant time. He argues no evidence showed he intended to place V. in reasonable fear for her safety, or that he engaged in a course of conduct sufficient to constitute harassment. Defendant also contends there was insufficient evidence that a restraining order was in effect when he allegedly stalked V. We disagree with these contentions.
The elements of stalking are (1) repeatedly following or harassing another person, and (2) making a credible threat (3) with the intent to place that person in reasonable fear for his or her safety or the safety of his or her immediate family. (§ 646.9, subd. (a); see People v. Zavala (2005) 130 Cal.App.4th 758, 766-767; People v. Ewing (1999) 76 Cal.App.4th 199, 210 [referring to earlier version of § 646.9].) Subdivision (b) of the same section is a penalty provision, which is triggered when the offense of stalking defined by subdivision (a) is committed by a person when he is subject to a protective order prohibiting him from stalking the same victim. (People v. Muhammad (2007) 157 Cal.App.4th 484, 494.)
The People state that defendant was subject to three different protective orders during the applicable time frame and “[t]he mere issuance of any one of these protective orders was sufficient to bring [defendant] within the increased sentencing provisions of section 646.9, subdivision (b).” Like defendant, we find this proposition unsupportable. Subdivision (b) of section 646.9 plainly states that it applies to a 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 ….” (Italics added.) There is no other way to read the statute.
A credible threat is “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.” (§ 646.9, subd. (g).)
Defendant argues there was no evidence he made a credible threat on July 11, 2006, the date referenced in the information. As defendant recognizes, however, an information’s description of an offense occurring “on or about” a particular date does not require proof that the offense occurred on that particular date. “The precise time at which the offense was committed need not be stated in the accusatory pleading, but it may be alleged to have been committed at any time before the finding or filing thereof, except where the time is a material ingredient in the offense.” (§ 955; see, e.g., People v. Triplett (1945) 70 Cal.App.2d 534, 541-542 [on or about July 1943 encompassed all of 1943].)
We believe the period of April 2006 through July 11, 2006 is easily encompassed by “on or about” July 11, 2006. During that period, defendant was subject to restraining orders from April 6 to 13, 2006 and from April 19, 2006 forward. The following incidents occurred in violation of those restraining orders. Defendant repeatedly yelled at V., used foul language and was very aggressive toward her. He grabbed her and pushed her. He was also verbally aggressive toward her brother, who tried to protect her. Her brother stayed with her because she was afraid of defendant. On about April 8, 2006, defendant came to V.’s house after being released from jail. He was more angry and aggressive than ever. He also called V. and threatened to have her children taken from her because she did not belong in this country and he threatened to turn everyone against her. On April 11, 2006, he entered V.’s house in her absence and would not submit to the officers until they broke into the house to remove him. On April 13, 2006, and other times, defendant repeatedly called V. During April and May 2006, he repeatedly passed by the house and made gestures to V. so she would know he was watching her. On May 30, 2006, he attempted to force his way into her locked house as she tried to hold him off. He told her things were not over and he took photographs, as he often did as part of his surveillance of her and the house. Out of fear, she changed the locks, covered her windows with blankets and finally took her children out of town. Defendant resorted to making false reports regarding V.’s fitness to parent the little girl, resulting in numerous official visits to V.’s house. On June 30, 2006, someone disabled V.’s phone line and destroyed her door lock. On July 11, 2006, defendant spoke to V. at the courthouse, stared at her and took photographs of her.
These events constituted a course of conduct directed at V. that “seriously alarm[ed], annoy[ed], torment[ed], or terrorize[d] [V.], and that serve[d] no legitimate purpose” (§ 646.9, subd. (e) [defining “harass”]). They constituted a “a combination of verbal, written, or electronically communicated statements and conduct … made with the intent to place [V.] in reasonable fear for … her safety or the safety of … her family” (§ 646.9, subd. (g) [defining “credible threat”]). After the physical harm defendant had inflicted on V. in the past, his past threats to her and her children, and his success in turning people’s opinions against her, defendant had “the apparent ability to carry out the threat[s]” and thereby “cause[d] [V.] to reasonably fear for … [V.’s] safety or the safety of … her family” (§ 646.9, subd. (g)). In our opinion, ample evidence supported both the stalking conviction and the increased penalty imposed for stalking while subject to a restraining order.
II. Unanimity Instruction
Defendant also asserts that the trial court erred by failing to sua sponte instruct the jury on unanimity. He says there is no way of knowing whether the jury agreed on which act or acts constituted the offense because there was evidence of multiple acts and the prosecutor failed to elect which act or acts constituted the offense. We disagree.
Where the evidence suggests that more than one criminal act can constitute the charged offense, either the prosecution must elect among the acts or the court must require the jury to agree on the same criminal act. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) A unanimity instruction is not required, however, where the evidence shows multiple acts in a continuous course of conduct. (People v. Stankewitz (1990) 51 Cal.3d 72, 100.) The continuous conduct rule applies where a defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them. (Ibid.)
Here the continuous conduct rule applies. Stalking, by definition, requires repeated following or harassment. As noted above, harassment is “a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose.” (§ 646.9, subd. (e), italics added.) Defendant offered no affirmative defense to any of the acts, and there was no reasonable basis for the jury to distinguish between them. The unanimity instruction was not required. Furthermore, any error in failing to give the instruction was harmless because the record shows the jury resolved the basic credibility dispute against defendant. (People v. Thompson (1995) 36 Cal.App.4th 843, 853.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Levy, Acting P.J., Hill, J.