Opinion
E051580 Super.Ct.No. FSB1000630
12-09-2011
THE PEOPLE, Plaintiff and Respondent, v. FARID MORCELI, Defendant and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont and Anthony Da Silva, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115 .
OPINION
APPEAL from the Superior Court of San Bernardino County. Warren L. Ettinger, Judge. (Retired judge of the former Mun. Ct. for the Pasadena Jud. Dist. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed with directions.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Arguing erroneous admission of prejudicial evidence, Farid Morceli (defendant) seeks reversal of his conviction for stalking. (Pen. Code, § 646.9.) Finding no error, we will affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS AND PROCEDURAL HISTORY
The victim lived in Adelanto and worked at the San Manuel Indian Bingo & Casino in Highland. In August 2009, she broke off a two-year live-in relationship with defendant. On February 12, 2010, she had two encounters with him.
Early morning incident:
On her way home from work around 3:00 a.m., the victim stopped at a gasoline station at the corner of Highland Avenue and Arden Avenue. Parking at a pump directly across from the entrance, she went into the gasoline station and paid for her purchase. She was beginning to pump the gas when about a minute later, tires screeching, defendant pulled up behind her. Without turning off the engine, defendant got out of his red car and "bee-lined" directly to her. He blocked her access to the door of her car and demanded to know if she had removed the restraining order she had against him. The victim told defendant that the case had been dismissed because she had been unable to serve him. Defendant responded that he was going to kill her and her three children anyway.
Station attendant M.H. witnessed the encounter between defendant and the victim, and heard the two arguing. Because of defendant's accent, M.H. could not distinguish all of his words. M.H. saw defendant grab the victim's arms, pin her against her car, shake her, and he heard the victim tell defendant to leave her alone and to quit following her, but M.H. did not hear defendant threaten to kill the victim. M.H., who did not know the victim's name and later described her as a "[s]hort, Oriental chick," called 911 and armed himself with a metal baseball bat to intimidate defendant. M.H. told defendant to leave the victim alone and leave the gasoline station. Defendant told M.H. he was going to call M.H.'s boss and have him fired. Defendant left the station and drove his vehicle halfway up the freeway on-ramp. He parked his vehicle for a few minutes before finally driving away. At 3:30 a.m., Officer Carrington arrived at the gasoline station in response to M.H.'s 911 call. The officer found the victim scared and nervous; her voice was shaky. The victim told the officer that she and defendant had been fighting about a restraining order, but she denied having lived with defendant and did not tell the officer that he had threatened to kill her and her children.
Late afternoon incident:
About 4:30 that afternoon, the victim left her home in Adelanto to return to work in Highland. As she drove onto the 215 freeway, the victim intermittently glimpsed a red car behind a large commercial truck to her rear. When the car pulled up on her left, she recognized it as defendant's vehicle. Defendant followed the victim on the freeway, a distance of about 42 miles, alternately "tailgating" and pulling up beside her while pointing at her and making throat-slashing and head-shooting motions with his hand. The victim was frightened and called 911. The dispatcher instructed her to exit the freeway at 5th Street in San Bernardino. As she did so, defendant followed her off the exit, where two police officers were waiting in separate cars.
One, Officer Walent, made eye contact with defendant, who then made a quick right turn across an adjacent lane, in front of another vehicle, and sped away. Officer Walent activated his emergency lights and siren and pursued defendant. Defendant failed to yield at first, but eventually stopped on the westbound side of the 6th Street bridge, where other police units had responded to Officer Walent's radio call. After defendant was stopped and detained, the officer asked for his identification. Defendant said the identification was in the car inside the pocket of his jacket. As Officer Walent was retrieving the jacket, he saw, in plain view, a pair of binoculars on the front console and a set of handcuffs lying on the floor of the front passenger seat. Officer Walent and another officer, Officer Silva, then searched the vehicle together. Officer Silva found two knives near the center of the backseat. One was in plain view, about a foot from the driver's seat and within reach of the driver through the open center console area; the other was in the same area but under some clothes.
Meanwhile, another officer, Officer Loera, made contact with the victim. The victim told Officer Loera about the early morning incident and reported that defendant had said that he was "going to fucking kill her." To Officer Loera, the victim appeared to be "very shaken up." Her voice and hands were shaking and she was crying.
Pretrial motions and trial events:
On May 7, 2010, the district attorney filed an information charging defendant with two felonies: making criminal threats (§ 422, count 1); and stalking (§ 646.9, subd. (a), count 2.)
In a pretrial hearing before voir dire began, defense counsel moved to exclude evidence of the binoculars, handcuffs, and knives found in defendant's car; the testimony of M.H.; and any mention of the restraining order the victim had obtained against defendant in December 2009. The trial court admitted the items found in defendant's car. Regarding the restraining order, the trial court ruled that the victim could testify that she had sought one, but the fact that it had actually been issued and any reference to the specifics supporting it would be excluded.
The restraining order had apparently included allegations by the victim that, at various times, defendant had asked her if she wanted to be "'shot in the head,'" if she had "'ever seen someone burned alive,'" or if she "'want[ed] to die a slow death.'"
Defense counsel also moved to exclude, on the basis of "late discovery," testimony by M.H. Although M.H.'s name was on the prosecution's witness list, it was not in any of the police reports counsel had been given and consequently had not been disclosed to counsel 30 days before trial, as required by section 1054.7. The prosecutor explained that his office had not known M.H.'s full name until "yesterday" and, so far, had not been able to contact the witness. However, if his office was able to secure the witness, the prosecutor wanted M.H. to testify. The trial court deferred a ruling, noting that counsel would have an opportunity to examine the witness and renew her objection if and when the prosecutor was able to secure M.H.
Jury selection took place on July 15, 2010, and through the first hour of Friday morning, July 16. Before selection resumed on Friday, defense counsel also moved to exclude as hearsay the contents of the victim's 911 call because in it she had referred to prior incidents of stalking by defendant. The prosecutor suggested the tape should be admitted to show the victim's state of mind. The trial court excluded any reference to prior bad acts, but otherwise deferred a decision on admissibility of the call.
After the victim's testimony on Friday, apparently at the time of the lunch break, the prosecutor gave defense counsel a copy of Officer Carrington's report regarding the early morning incident. The prosecutor said that he had just received the report that morning. Defense counsel agreed that the report did not say anything different from what was in the prosecutor's trial brief and witness summary statement, but she continued to object on the basis of late discovery.
The trial brief and summary statement were written on July 13, 2010, and appear to have been provided to the trial court and to defense counsel by the following day, when the trial court and the parties discussed their contents.
Thereafter, defense counsel cross-examined the victim and Officers Carrington, Walent, and Loera testified to the events as recounted above. After the jury left, the trial court disclosed that it had received a request from a juror for the details of the restraining order but that it intended to tell jurors that that information was irrelevant to the present charges. Neither counsel objected to the trial court's plan. Arguing "hearsay and cumulative," defense counsel also objected to the prosecutor's plan to play the audiotape of the victim's 911 call to show her fearful state of mind at the time of the afternoon incident. Before trial resumed on Monday morning, July 19, 2010, the trial court excluded the tape and transcript of the 911 call as cumulative.
Defense counsel also repeated her objection to testimony by M.H., complaining that she had not seen M.H.'s statement to Officer Carrington until she received the officer's report on Friday. This time the prosecutor responded by explaining in more detail the difficulties his office had had in reaching the witness: M.H.'s 911 call had not identified the caller other than by his first name; M.H. no longer worked at the gasoline station; despite extensive investigative efforts and two subpoenas left at M.H.'s home after the office obtained his address, the prosecutor had only successfully reached M.H. by telephone that morning. Defense counsel had been given a transcript of M.H.'s call on June 9, 2010. Officer Carrington's report, which the prosecutor and defense counsel both received at the same time on June 11, contained almost the same information. In response to a query from the trial court, defense counsel confirmed that she had had the transcript of the 911 call "for a long time" and had read it and the other documents and had no objection to their contents. But after interviewing M.H. off the record, defense counsel renewed her objection and requested that, if M.H. testified, a late discovery instruction be given to the jury. M.H. was allowed to testify and the requested instruction was given. Finally, Officer Silva testified about the items he found in his search of defendant's car.
The reporter's transcript seems to erroneously identify the speaker who responded to the trial court's first three questions on this issue as the prosecutor rather than defense counsel. The error followed the trial court's own mistaken address of its initial question to "Mr. Guererro."
The trial court required one modification: M.H. was not allowed to use the word "fled" to describe defendant's leaving the gasoline station.
On July 20, 2010, the jury found defendant guilty of count 2 (stalking), but not guilty of count 1 (criminal threats). On August 9, 2010, defendant was sentenced to the low term of 16 months in state prison. This appeal followed.
DISCUSSION
Defendant's primary arguments are: (1) that the trial court erroneously permitted M.H. to testify; (2) that it erroneously admitted evidence of the items found in defendant's car; and (3) that the cumulative effect of these putative "errors" was to deny defendant due process. Defendant is correct that while certain errors might not be significantly prejudicial by themselves, their effect in combination can require reversal. (People v. Bunyard (1988) 45 Cal.3d 1189, 1236.) However, defendant is wrong that any such errors occurred in this case. In our view, there were no errors in the admission of evidence, either singly or cumulatively, and even if there were, neither they nor their cumulative effect prejudiced him. (Ibid.)
Admission of Evidence and the Standard of Review:
"Except as otherwise provided by statute, all relevant evidence is admissible." (Evid. Code, § 351.) "'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) However, "[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) Prejudicial is not the same as inconvenient or damaging; nor is relevant evidence to be excluded merely because it shores up the proponent's position. (People v. Scott (2011) 52 Cal.4th 452, 490-491.) "'"In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose." [Citation.]' [Citation.]" (Ibid.)
An appellate court reviews a trial court's decisions regarding the admission of evidence for abuse of discretion, reversing only if the ruling below was so "'"arbitrary, capricious, or patently absurd [as to have] resulted in a manifest miscarriage of justice."'" (People v. Geier (2007) 41 Cal.4th 555, 585; see also People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1614.)
Criminal Threats and Stalking:
A criminal threat is an "unequivocal, unconditional, immediate, and specific" threat of death or great bodily injury communicated verbally, in writing, or by electronic means and under circumstances where it reasonably appears to victim that the threat can and will be carried out. (§ 422.) Gestures alone generally will not support a criminal threat conviction. (People v. Franz (2001) 88 Cal.App.4th 1426, 1439 (Franz):)
"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 stalking [and] is punishable by imprisonment . . . in the state prison." (§ 646.9, subd. (a).) Stalking when there is a restraining order in place subjects the violator to penalties of two, three, or five years in state prison. (§ 646.9, subd. (b).) Unlike the threat defined by section 422, a threat for purposes of the stalking statute does not require verbalization, a writing, or an electronic communication; it may be implied by a pattern of conduct. (Franz, supra, 88 Cal.App.4th at p. 1440.)
Analysis:
Defendant's pattern of conduct as evidenced by the early morning and late afternoon incidents of February 12, 2010, aside from any corroboratory physical or testimonial evidence, strongly supported a stalking charge. Twice within the space of 12 hours, he followed, and threatened the victim. In the first instance, defendant's conduct was witnessed. In both instances, the sustained fear his acts generated was confirmed by the independent observations of two police officers who responded to separate 911 calls related to the incidents. Both found the victim visibly shaken.
Moreover, the circumstances of each incident demonstrated that the victim's fears were reasonable. At the time of the first incident, defendant's threats may not have carried such an immediate prospect of being carried out as to constitute a violation of section 422—after all, the episode took place in the presence of a witness who was armed with a baseball bat and calling the police—but their timing certainly made them credible within the meaning of section 646.9. The incident happened in the wee, presumably dark, hours of a winter morning; the victim had just gotten off work from a late night shift; and defendant pulled up suddenly behind the victim a minute after she arrived at the gasoline station. The victim told the responding officer, and later testified, that defendant was angry because of the possible existence of a restraining order. In addition, the victim's account of the details of the event fit with the observations of M.H. At the time of the second incident, defendant followed the victim off the freeway and into the arms of the law, so to speak, while transporting implements that made defendant's threats credible.
The trial court flatly denied the jury's request for further information about, or the contents of, the restraining order.
Testimony of M.H.
An appellate court assumes in favor of the verdict the existence of every fact a jury could have reasonably deduced from the evidence; this includes "the testimony of witnesses who have not been discredited and whose testimony is not inherently improbable." (People v. Kramer (1968) 259 Cal.App.2d 452, 461 [Fourth Dist., Div. Two], and cases cited therein.) Defendant complains that M.H. should not have been allowed to testify because his story "corroborated [the victim's] account of the gas station incident." We agree that the testimony was corroborative, but M.H. was not a discredited witness, and his account of the events at the gasoline station was not improbable. Defendant's suggestion, that without M.H.'s testimony the jury would have doubted that the gasoline station incident even occurred and thus—because it is a crime that requires two or more incidents—would have found him not guilty of stalking, is improbable. Firstly, it strains credulity to think that M.H., who did not even know the victim's name, would have fabricated the whole story and repeated its details in his 911 call and in court testimony. Secondly, it further strains credulity to postulate, as defendant impliedly does, that either M.H. was not there at all, or that defendant just happened to be abroad at 3:00 a.m. when the victim got off work, and just happened to need gas at the same gasoline station, at the same time, and just happened to jump out of his car without turning off the motor, and then just happened to notice the victim and decide to block her access to her car and to grab her and shake her. The jury appears to have concluded that the circumstances of the early morning incident, in conjunction with the testimony of M.H., meant that defendant had followed and maliciously harassed his victim. We do not find their conclusion unreasonable.
Even assuming, for the sake of argument, that M.H. should not have been allowed to testify because he was located so late, there is no reasonable probability that defendant would have received a more favorable verdict if he had not done so. (People v. Watson (1956) 46 Cal.2d 818, 836.) Defendant discounts the effect of M.H.'s recorded 911 call, which had been provided to defense counsel more than a month before trial began, as well as the fact that a police officer had responded to the call and was able to testify about it, even if his report documenting the incident had only reached the parties just before trial. The problem for defendant was not that M.H. was allowed to testify, but that defendant had threatened the victim in the presence of a credible witness.
Defendant appears to think that the prosecutor knew the identity and location of M.H. a long time before it was disclosed to defense counsel, but we have no reason to dispute the prosecutor's representations to the trial court and to defense counsel that he was unable to obtain the information.
It is true that, by itself and even though corroborated, defendant's early morning actions amounted only to a single instance of threatening conduct. But considered in conjunction with the late afternoon incident, it completed a pattern of stalking. (§ 646.9, subd. (f).) The fact that the jury acquitted defendant of a violation of section 422, while convicting him of a violation of section 646.9, shows that they appreciated the difference between the two crimes.
Binoculars, Knives, and Handcuffs
Together, the pieces of evidence represented by the objects found in defendant's car at the time of the afternoon incident supported the jury's finding as to the stalking charge. The combination of "ominous," but in our view not "irrelevant," objects lent credibility to the afternoon threats, even though the victim, presumably, did not actually see them. "'Relevant evidence' means evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) One fact necessary to the determination of the crime of stalking is the defendant's intent. (Pen. Code, § 646.9, subd. (a).) The objects found in defendant's car at the time of his arrest had a tendency in reason to prove this fact.
The binoculars demonstrated defendant's intent to follow the victim at the time of the afternoon incident. It is true, as he suggests, that binoculars can be used for innocent purposes, but that is not the point. Binoculars are visual aid devices that make it possible to see and follow objects—including people—at a distance. Defendant began following the victim somewhere in Adelanto and tracked her down the freeway for 42 miles. By themselves, the binoculars did not constitute conclusive proof of guilt, but they certainly amounted to a brick in the wall of evidence that defendant had been following the victim. In the early morning incident, there was no evidence to show how defendant had sighted and been able to follow the victim from her workplace to the gasoline station in the dark at 3:00 a.m. But in the afternoon incident, because she intermittently glimpsed his car, the victim knew that defendant had followed her from Adelanto, while alternately tailgating her and making throat slashing and head shooting gestures.
It is unclear whether the binoculars (or the knives and handcuffs) were present in defendant's car at the time of the early morning incident.
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The knives and handcuffs were more sinister, specific evidence that defendant harbored the intent to frighten his victim, and had provided himself with the means to execute the threats conveyed by his graphic gestures. Moreover, there was no indication that the jury was inflamed by the items or that it reacted emotionally or inappropriately to them. To the contrary, the fact that defendant was acquitted of making criminal threats and convicted only of stalking, demonstrated that the jurors had parsed the evidence carefully.
Assuming, again for the sake of argument, that the objects should not have been admitted, it is the case, with the afternoon incident as with the morning incident, that defendant was not prejudiced by their admission because other circumstances strongly indicated his guilt. He followed the victim for 42 miles between two cities and exited at the same off-ramp. When he saw a waiting officer, he cut across the adjacent lane and in front of another car and, according to the officer, failed at first to yield. As the California Supreme Court has long held, flight supports an inference of consciousness of guilt and may constitute an implied admission. (People v. Wallace (2008) 44 Cal.4th 1032, 1074; accord, People v. Garrison (1989) 47 Cal.3d 746, 773.)
In sum, in our view, the trial court properly exercised its discretion to admit evidence, and none of its decisions constituted a miscarriage of justice.
Correction of the Minutes:
Defendant asserts, and the People concede, that the minute order does not reflect the trial court's judgment that he was not required to pay probation supervision fees. We agree and will order the minutes corrected to reflect the trial court's oral pronouncement. Probation Report Fee:
Defendant also argues that the $505 section 1203.1b probation report fee the trial court imposed was improper and must be reversed. The People respond that defendant forfeited this argument by failing to object at the time the fee was imposed.
In People v. Valtakis (2003)105 Cal.App.4th 1066 (Valtakis), the court extensively reviewed the history of section 1203.1b and concluded, consistent with general waiver rules as delineated by our state Supreme Court in People v. Welch (1993) 5 Cal.4th 228 and People v. Scott (1994) 9 Cal.4th 331, that a defendant's failure to object to a probation investigation fee imposed under the section waives the claim on appeal. (Valtakis, at p. 1068.) This is true even when the trial court fails to fully comply with the procedures provided for by the statute. (Valtakis, at p. 1075.) Even in the event of such noncompliance, reversal is not required absent the likelihood of a more favorable result on remand. (Id. at p. 1076, citing People v. Watson, supra, 46 Cal.2d 818, 836.)
At sentencing, the only request defendant made, through counsel, was that he be permitted to pay the various fines imposed at a rate of $25 a month starting from the date of his release. The prosecutor did not object to the payment plan, and the trial court granted the request. Defendant not only failed to object to the probation investigation fee, he asserted no claim of financial infirmity, and made no request for a hearing on his ability to pay any of his fines or fees. According to the probation report, defendant had two years of college and a job as the assistant manager of a "Circle K" store. There is no reason to believe he will not be able to pay the probation report fee at the modest rate the trial court allowed.
DISPOSITION
The superior court clerk is directed to correct the August 9, 2010, minute order to state that defendant is not required to pay a probation supervision fee.
In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZP. J. We concur: KING J. CODRINGTON J.