Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Ct. No. TA088187. Gary E. Daigh, Judge.
Sara H. Ruddy, 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, Assistant Attorney General, Linda C. Johnson and Susan S. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
Appellant Rodney Lamar Stanford was convicted of one count of stalking while a temporary restraining order was in effect and two counts of disobeying a temporary restraining order. He contends that imposition of the upper term on the stalking count violated his Sixth Amendment right to trial by jury. We requested supplemental briefing on whether the abstract of judgment was correct and whether imposition of sentence on all three counts violated Penal Code section 654’s prohibition against multiple punishment. Having considered all of the briefing, we find no error, and affirm.
Subsequent code references are to the Penal Code unless otherwise stated.
PROCEDURAL HISTORY
Count 1 of the information charged appellant with committing corporal injury to his child’s parent (§ 273.5, subd. (a)) on October 5, 2006. Count 2 alleged criminal threats (§ 422) on October 20, 2006. Count 3 alleged stalking while a temporary restraining order was in effect (§ 646.9, subd. (b)), during the period between June 7, 2004 and October 24, 2006. Counts 4 and 5 alleged that on October 5, 2006 and October 20, 2006, respectively, appellant disobeyed a restraining order (§ 273.6, subd. (a)). The first three counts were felonies; the latter two, misdemeanors. The information also alleged one prior felony conviction that resulted in a prison term.
The jury found appellant guilty on counts 3 through 5. It was unable to reach a verdict on counts 1 and 2, which were later dismissed in the interest of justice. At bifurcated proceedings, the court found true the prior conviction allegation.
Appellant was sentenced to the upper term of four years in prison on count 3, plus a consecutive year on count 4, plus one year for the prior conviction. Count 5 was made concurrent. This appeal followed.
FACTS
1. Prosecution Evidence
Prior to July 2004, Deborah Anderson had been appellant’s girlfriend for 12 years. He was the father of her daughter and sometimes lived with her. In July 2004, she obtained a restraining order because he was harassing her. The restraining order remained in effect for the next three years. It prohibited appellant from contacting her in person or over the telephone.
Anderson gave a copy of the restraining order to appellant’s parole officer. Appellant thereafter came to her home on an unspecified date, angry that she told the parole officer he did not live with her.
On July 6, 2005, appellant came to Anderson’s home and demanded money. She told him she had none. He said, “B----, you just bought a new car.” He kicked a dent in her new car and left.
On February 10, 2006, in the presence of one of Anderson’s relatives, appellant pushed Anderson in the face with the palm of his hand, which caused her to fall to the floor.
On October 5, 2006, appellant approached Anderson in front of her apartment building. Their child was present at the time. He yelled at her, pulled her hair, called her “a lying b----,” and socked her in the eye.
Appellant rode by Anderson’s house on numerous subsequent occasions. He telephoned her and said he could “get” her any time he wanted. He told her he knew when she left for and returned from work.
On Friday, October 20, 2006, appellant called Anderson at work to complain that the restraining order had led to a warrant for his arrest and cessation of his social security benefits. He said he could hurt her whenever he wanted to. He threatened to “pay a crack head $200” to beat her in the head with a bat while he watched. She took the threat seriously, as he had previously acted on his threats to her, and she had not been able to obtain help from the police. She left a message for Detective Michael Applegate and left town for the weekend, at the advice of another detective. When she returned home on Monday, October 23, she saw appellant parked near her apartment. He rode by her house on several later occasions.
Detective Applegate testified that when he spoke with Anderson on October 23, 2006, Anderson was fearful and nervous as she described appellant’s presence outside her apartment that day and his threat over the telephone on the preceding Friday.
2. Defense Evidence
Appellant testified that he and Anderson continued to be lovers after their relationship broke up. He denied that he ever threatened her, touched her in a violent manner, kicked her car, or went to her apartment when she did not want him there. He saw her one time with facial bruises and a black eye, and she told him the injuries had been inflicted by another man. Appellant believed Anderson obtained the restraining order because they were quarreling about money he had received when a lawsuit was settled.
On cross-examination, appellant admitted that he went to prison in 2000 for the crime of possession for sale of cocaine base.
DISCUSSION
1. Imposition of the Upper Term
Appellant contends that imposition of the upper term on count 3 violated his Sixth Amendment right to trial by jury under Cunningham v. California (2007) 549 U.S. 270, Blakely v. Washington (2004) 542 U.S. 296, and Apprendi v. New Jersey (2000) 530 U.S. 466.
In imposing the upper term, the trial court found as a circumstance in aggravation that appellant was on parole at the time of the offenses. The court further indicated that, although appellant’s parole status was sufficient standing alone to justify the upper term, there also was a second circumstance in aggravation, as appellant performed unsatisfactorily on probation.
The factors in aggravation utilized by the trial court are derived from “the fact of a prior conviction” exception to the right to jury trial. As explained in People v. Black (2007) 41 Cal.4th 799, 818-820 (Black II), that exception originated in Almendarez-Torres v. United States (1998) 523 U.S. 224 (Almendarez-Torres). Appellant maintains that the Almendarez-Torres exception is no longer viable or should be limited to the fact of a prior conviction.
In Black II, supra, 41 Cal.4th at pages 819-820, the California Supreme Court determined that the Almendarez-Torres exception extends beyond the fact of the prior conviction and includes “other related issues that may be determined by examining the records of the prior convictions.” Consequently, Black II permitted imposition of the upper term because the defendant’s criminal record contained prior convictions that were “numerous or of increasing seriousness.” (Black II, at p. 818.)
More recently, in People v. Towne (2008) 44 Cal.4th 63, 70-71, the California Supreme Court held: “[T]he aggravating circumstance that a defendant served a prior prison term or was on probation or parole at the time the crime was committed may be determined by a judge and need not be decided by a jury. In addition, the aggravating circumstance that a defendant’s prior performance on probation or parole was unsatisfactory may be determined by a judge, so long as that determination is based upon the defendant’s record of one or more prior convictions.”
As we must follow the decisions of the California Supreme Court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), we reject appellant’s contention regarding the propriety of the upper term on count 3.
2. The Abstract of Judgment
Having reviewed the supplemental briefing, we find that the abstract of judgment is consistent with the judgment that was imposed.
3. The Section 654 Issue
In addition to imposing the upper term on count 3, the trial court imposed a consecutive sentence on count 4 and a concurrent sentence on count 5. We asked the parties to brief this question: “Does the sentence imposed on counts 4 and 5 comply with the provisions of Penal Code section 654?” The parties’ answers to that question dispute whether counts 4 and 5 should have been stayed.
Section 654 states in pertinent part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”
“Section 654 applies when there is a course of conduct which violates more than one statute but constitutes an indivisible transaction. [Citation.] The purpose of section 654 is to ensure that a defendant’s punishment will be commensurate with his culpability. [Citation.] Whether a course of criminal conduct is a divisible transaction which could be punished under more than one statute within the meaning of section 654 depends on the intent and objective of the actor. [Citation.] [¶] The determination of whether there was more than one objective is a factual determination, which will not be reversed on appeal unless unsupported by the evidence presented at trial.” (People v. Saffle (1992) 4 Cal.App.4th 434, 438.)
On count 3, appellant was convicted of violating subdivision (b) of section 646.9 during the period between June 7, 2004 and October 24, 2006.
Section 646.9 states 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, punishable by imprisonment in a county jail for not more than one year, or by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment, or by imprisonment in the state prison. [¶] (b) Any 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, shall be punished by imprisonment in the state prison for two, three, or four years.”
Here, appellant received the greater penalty of section 646.9, subdivision (b), rather than the lesser penalty of section 646.9, subdivision (a), due to the allegation that he was “subject to a temporary restraining order” during the period of the stalking. (See People v. McClelland (1996) 42 Cal.App.4th 144, 150; 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against the Person, § 296, p. 900.)
In contrast, appellant’s conviction on counts 4 and 5 concerned his acts on specific dates. Those counts charged that on October 5, 2006 and October 20, 2006, appellant committed “the crime of DISOBEYING [A] DOMESTIC RELATIONS COURT ORDER, in violation of PENAL CODE SECTION 273.6(a), a Misdemeanor,” because he “did knowingly, and intentionally violate a court order obtained pursuant to Section 6200 of the FAMILY CODE Code [sic] of the State of California, to wit, LOS ANGELES SUPERIOR COURT RESTRAINING ORDER AFTER HEARING #BQ008888.”
The evidence showed that appellant engaged in numerous acts of harassment, on the dates specified for counts 4 and 5 and on other occasions, after the temporary restraining order was obtained in July 2004 (see ante, at pp. 2-3).
During final argument, the prosecutor summarized all of the incidents that Anderson had described. Later, in discussing count 3, the prosecutor argued, “And we have clearly from July 2004 several dates leading up to October 23rd of 2006 which qualify as the harassment. October 5th is clearly one day where he physically abused the victim and October 20th [is] the day where he actually conveyed the threat over the telephone.” In discussing counts 4 and 5, the prosecutor argued more generally that those counts were proven by the evidence that, despite the restraining order, appellant went to see Anderson and telephoned her.
The prosecutor’s discussion of count 3 referred, as examples, to appellant’s conduct on the two dates that formed the basis of counts 4 and 5, but the argument on count 3 encompassed all of appellant’s behavior during the relevant period, including many acts not punished by counts 4 and 5. Therefore, as the trial court properly concluded at the sentencing hearing, section 654 does not require the staying of any of the counts.
DISPOSITION
The judgment is affirmed.
We concur: RUBIN, Acting P. J. BIGELOW, J.