Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
San Luis Obispo County Super. Ct. No. F383997 John A. Trice, Judge
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Robert C. Schneider, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
Anthony Quinn Rivers appeals a judgment following his conviction for stalking (Pen. Code, § 646.9, subd. (a)), (count 1), making criminal threats (§ 422), (counts 3, 4 and 6), attempting to make a criminal threat (§§ 664, 422), (count 5), and dissuading a witness from testifying (§ 136.1, subd. (a)(2)), (count 7). The jury also found Rivers had prior convictions for robbery (§ 211), first degree burglary (§ 459), and a 2005 conviction for making criminal threats (§ 422). We conclude, among other things, that substantial evidence supports his convictions for stalking, making criminal threats, and dissuading a witness from testifying. The trial court did not err by imposing a separate consecutive sentence for count 7. We affirm.
All statutory references are to the Penal Code.
FACTS
Tammy B. met Rivers in 2001. She tried to end their relationship in 2004. Rivers became angry and threatened her. He told her if she "tried to leave him" she would "leave in a box." He said he could kill everyone in her family before the police arrived. Tammy believed he was going to kill her.
In 2004, Rivers was arrested for making threats to Tammy. (§ 422.) While he was incarcerated, he left messages on her cell phone threatening her life. Rivers was convicted and sentenced, but he continued to write threatening letters to her from Chino State Prison.
Rivers was transferred to the California Men's Colony at San Luis Obispo, (CMC). In December of 2005, he sent several letters to Tammy. She read only one of them. But she noticed that he wrote threats on the outside of the envelopes.
The prosecution introduced five of these envelopes at trial. On the first one Rivers wrote, among other things, "I'm coming. Watch," and "You are a pig. You're going to die like a pig. I'll see you way before you ever think." On the second, he said, "Tammy . . . is gonna pay. She's vile and dirty, she's going to pay." On another, he wrote, "Tammy I'm coming," and "You are going to lose everything you've got. You're filthy, nasty, tramp. You watch. You're going down. I guarantee it." He also wrote, "You shall pay viciously for the evils you do," and "You're not gonna get away with this. . . . No contentious tramp, I'm coming." On the fourth envelope, Rivers wrote, "You sold me down the river, B. It ain't over, though," and "As soon as I can, first chance I get, I'm striking back. Pay back uh mf." On the fifth, he said, "I'm comin' any day now . . . . I'm gonna see you."
Tammy testified that she became afraid after reading these threats. Raymond Baez, a CMC correctional officer, testified that Rivers admitted sending these envelopes to Tammy. Rivers told Baez that "it was therapy for him" and "his intent was to make her life miserable and to scare her."
In April of 2006, Rivers wrote a letter to his brother. He included Tammy's home and cell phone numbers and her home and work address. Rivers told him to contact her and to "remind that bitch . . . that this is a (3) strikes 'life' case!" He wrote, "Glen, if you be nice, she's [going to] write you off as a punk!" "So it ain't no nice shit, man I've got fuck'n years! Act like it. Give # to Melvin explain what's up. The more the merryer. Okay?" "Glen: I need my BIG brother, to come through (4) me." The letter was intercepted by CMC prison officials before Rivers' brother could receive it.
DISCUSSION
I. Substantial Evidence for Stalking
Rivers claims there was insufficient evidence to support his conviction for stalking. We disagree.
In reviewing the sufficiency of the evidence, we draw all reasonable inferences in support of the judgment. We do not weigh the evidence or decide the credibility of witnesses. (People v. Rodriguez (1999) 20 Cal.4th 1, 10-12.) The offense of stalking is committed when the defendant "willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and . . . 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 . . . ." (§ 646.9, subd. (a).) "[T]here is nothing in the language of the statute to require a concurrence of [the defendant's] act and [the victim's] reaction." (People v. Norman (1999) 75 Cal.App.4th 1234, 1239.) "What matters is that, when [the victim] did learn of [defendant's] acts and threats, [he or she] suffered the requisite fear . . . ." (Id. at p. 1240.)
Rivers contends the statements he wrote on the outside of the envelopes were not credible threats. We disagree. They were unambiguous and unconditional threats. He wrote, "You're going to die like a pig. I'll see you way before you ever think." On another envelope, he said, "Tammy . . . is gonna pay. She's vile and dirty, she's gonna pay." On a different envelope, he wrote, "I'm comin' any day now . . . . Merry Christmas you . . . . I'm gonna see you." On another, he said, "You sold me down the river, B. It ain't over, though," and "As soon as I can, first chance I get, I'm striking back. Pay back uh mf."
Rivers claims that he was incarcerated and he lacked the ability to carry out his threats. But section 646.9 subdivision (g) states, "The present incarceration of a person making the threat shall not be a bar to prosecution under this section." Moreover, Tammy testified that she feared some inmate who owed Rivers "a favor" would be released "and do something to [her] at [Rivers'] request." A trier of fact could reasonably infer that her fear was reasonable. Whether a threat is credible is determined by the defendant's words and the surrounding circumstances. (People v. Martinez (1997) 53 Cal.App.4th 1212, 1218.)
Tammy testified that when Rivers was in custody he "constantly told [her] to watch [her] back." Her fear was not hypothetical. During Rivers' incarceration, she had received warning calls from different prison officials. A Chino prison guard advised her that an inmate she did not know had obtained her address, birth date and phone number. The guard warned her to "be careful because [her] information was being circulated" in the prison. She knew Rivers was responsible for the release of this information. Rivers also attempted to have his brother contact her and he admitted to Baez that he was trying to make Tammy's life miserable. Baez talked with Tammy about the threats and he testified that she appeared to be "afraid." Tammy testified that she felt "harassed" because Rivers sent letters to her home and her work place. The evidence is sufficient.
II. Sufficiency of the Evidence for Criminal Threats
Rivers contends the evidence is insufficient to support his conviction for making criminal threats. We disagree.
The crime of making a criminal threat requires proof that the defendant threatened to commit a crime that will result in death or great bodily injury and the threat is so specific it conveys "a gravity of purpose and an immediate prospect of execution of the threat." (§ 422; People v. Toledo (2001) 26 Cal.4th 221, 227-228.) The victim must be in a sustained state of fear. (People v. Solis (2001) 90 Cal.App.4th 1002, 1015.) "A threat is sufficiently specific where it threatens death . . . " (People v. Butler (2000) 85 Cal.App.4th 745, 752.) The language of the threat does not have to include details about the "'time or precise manner of execution.'" (Ibid.)
Here Rivers threatened Tammy with death. He said, "You're going to die like a pig." He also said, "I'll see you way before you ever think," and "I'm coming. Watch." Tammy testified that she believed Rivers would carry out his threats. While in custody, Rivers "constantly told [her] to watch [her] back" and that she would "never know who's coming up behind [her]." She believed this meant "someone that [Rivers] knows is going to come and kill [her]." In addition to the warning from the Chino prison guard, Baez of CMC told her that he had intercepted a letter from Rivers in which Rivers said he planned to escape and kill Tammy. Rivers' letter to his brother indicated that Rivers believed he could rely on someone on the outside to reach Tammy. Tammy testified that Rivers subjected her to a "living nightmare." A trier of fact could reasonably infer that she was in a sustained state of fear. The evidence is sufficient.
III. Dissuading a Witness
Rivers contends the evidence is insufficient to support his conviction for dissuading a witness. We disagree.
Section 136.1, subdivision (a)(2) states that any person commits this offense where he or she "[k]nowingly and maliciously attempts to prevent or dissuade any witness or victim from attending or giving testimony at any trial . . . ." (People v. Foster (2007) 155 Cal.App.4th 331, 335.) "The statute neither restricts the means a defendant selects to commit the offense, nor does it require that the defendant personally deliver the message to the witness." (Ibid.)
Tammy was a victim and a witness. In December of 2005, she talked with CMC about Rivers' threatening letters. On December 19, 2005, CMC officials placed Rivers in an "administrative segregation" area of the prison. They also began an investigation which ultimately led to criminal charges against him.
In April of 2006, Rivers wrote the letter to his brother asking him to contact Tammy. He specifically instructed him to "remind that bitch . . . that this is a (3) strikes 'life' case," to be aggressive and to give Tammy's number to Melvin. From the language he used, the jury could reasonably infer that Rivers was attempting to use his brother and Melvin to intimidate Tammy.
Rivers contends there was no completed crime because his letter was intercepted by prison officials before his brother could read it and contact Tammy. But "[a] threat need not actually deter or reach the witness because the offense is committed when the defendant makes the attempt to dissuade the witness." (People v. Foster, supra, 155 Cal.App.4th at p. 335.)
Here Rivers made that attempt by sending the letter with the instructions to his brother about contacting Tammy. Baez testified that even though prison officials intercepted the letter, Rivers "did all he could to get that into the post office." Rivers' actions fall within section 136.1, subdivision (a)(2). "The Legislature was aware of the longstanding problem of prisoners using others not in custody to intimidate witnesses. The goal of the legislation was to discourage all who attempted to dissuade witnesses, regardless of the means selected or the success of the attempt." (People v. Foster, supra, 155 Cal.App.4h at p. 337.)
IV. Sentencing
Rivers contends that the trial court erred by imposing a consecutive 25-year-to-life sentence on count 7, dissuading a witness. We disagree.
Rivers fell within the purview of the Three Strikes law. He was sentenced to 25 years to life on count 1. The court imposed prison terms on counts 2 through 6, but stayed all of them under section 654. On count 7, it imposed a consecutive 25-year-to-life sentence.
"Section 654 precludes multiple punishment for a single act or indivisible course of conduct punishable under more than one criminal statute." (People v. Cleveland (2001) 87 Cal.App.4th 263, 267.) "Whether a course of conduct is divisible and therefore gives rise to more than one act . . . depends on the 'intent and objective' of the actor." (Ibid.) "If . . . the defendant had multiple or simultaneous objectives, independent of . . . each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct." (Id. at pp. 267-268.) Determining the defendant's goals in committing crimes is a factual issue for the trial court. (People v. Osband (1996) 13 Cal.4th 622, 730-731.)
Here the court found that count 7, dissuading a witness, had a "separate nature" from the criminal threat and stalking offenses. Rivers argues that count 7 was part of an indivisible course of conduct which included his threatening letters. But the letters involved in counts 2 through 6 were sent in 2005. The dissuading a witness offense occurred in April of 2006. The crimes were divisible and Rivers had time to reflect and discontinue his actions. (People v. Lawrence (2000) 24 Cal.4th 219, 234.)
Moreover, Rivers has not shown why the trial court could not find that count 7, and stalking and sending threatening letters involved different goals. Rivers stalked Tammy and sent the letters to harass her. He told Baez the letters were "therapy for him" because his intent was "to make her life miserable." But the trial court could reasonably infer that count 7 had a different purpose and was directed against a different target. The goal was to undermine the district attorney's case and prevent Rivers from being criminally prosecuted. The court could reasonably infer that stalking and sending threatening letters were for his amusement, but count 7 was motivated by his fear of a longer prison term. Rivers has not shown an abuse of discretion.
The judgment is affirmed.
We concur: YEGAN, J. PERREN, J.