Opinion
A150006
02-27-2018
THE PEOPLE, Plaintiff and Respondent, v. NICHOLAS DANIEL STILES, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCR-666268)
After a jury trial, defendant Nicholas Daniel Stiles was convicted of misdemeanor disobeying a civil protective order (Pen. Code, § 273.6, subd. (a) ), misdemeanor contempt for violating a criminal protective order (§ 166, subd. (c)(1)) and stalking while a protective order was in effect (§ 646.9, subd. (b)). After the first jury hung on a charge of felony vandalism (§ 594, subd. (a)), the People elected to retry defendant on that charge, and the jury in the second trial convicted him. Defendant makes two arguments on appeal: first, the charges of disobeying a civil protective order and stalking while a protective order was in effect are not supported by substantial evidence, and second, the trial court erred by imposing concurrent sentences on his convictions of disobeying the civil protective order and violating the criminal protective order, and should have stayed those sentences under section 654. We find no merit in defendant's substantial evidence challenge, but agree that the court should have stayed the sentences on the convictions for violating the protective orders under section 654. We therefore order the judgment be modified, and affirm it as modified.
All statutory references are to the Penal Code.
The first jury also acquitted defendant of misdemeanor vandalism (§ 594, subd. (a)) and hung on a charge of attempting to dissuade a witness (§ 136.1, subd. (a)(2)), neither of which are relevant to this appeal.
BACKGROUND
The evidence presented at trial, in the light most favorable to the verdict, is as follows. After Jane Doe told defendant she was ending their two-year dating relationship in April 2015, defendant asked her to return money he had loaned her. When she sent him an installment at a post office he refused to pick it up, and when her brother offered to pay him all of the money up front, he demanded that Jane Doe pay it herself. At some point in May 2015, defendant slashed Jane Doe's tires. At some point after that, defendant texted her "You think what I did to your tires was bad, wait until you see what I'm going to do next."
During May 2015, defendant called and sent Jane Doe text messages every day and sometimes went by her apartment, making her afraid for her safety. The text messages alternated between angry or threatening and conciliatory or nice. For example, he sent messages referring to her as "Bitch," saying "You made me love you. Fuck you, m. Then you hurt me", accusing her of cheating on him and threatening to post negative reviews about her. These messages were interspersed with others saying he loved her, wanted her and would wait for her. He asked repeatedly and insisted he needed to know whether she was seeing anyone else. He ruminated about whether she still liked him and wanted him to stay.
On May 16, 2015, defendant texted Jane Doe stating he was killing himself and included a photo of his slit wrist. She called the fire department. He later texted her a photograph of his wrist with sutures. After he got out of the hospital, he went by her apartment. She called police, fearful of what he might do to her. While he was in the hospital, defendant wrote Jane Doe a rambling letter, which she received on May 23, 2015. He admitted to acting "a fool" but said it was because he felt she had "betrayed" him, "used" him and didn't care about him, with the result that he was "completely crushed" and "sought out to end it with no chances of coming back." He was "sure" she was "seeing someone already" and was "hurt," and the thought of her watching the TV he bought her together with another guy was "killing" him. He got carried away about "the money, the tires, all of the silly stuff." He "fucked up royally" and was "disgusted with [his] behavior." He had bullied her because he was crushed. He had "never loved anyone like [he] loved [her]," and she was "pretty," "not the person [he] tried to make [her] out to be," was "well kept," "hopeful," a "hard worker" and had "good characters." He "should have married" her and would "always love" her, and was "saying good-bye," but if she didn't have a great relationship again, he would always be there and she could trust him again. He would apply what she owed him to the tires and if they cost more he would pick up the rest. He hoped her new boyfriend was "God to you" but would "have that stuff in my head." Jane Doe viewed the letter not as an apology but as him trying to get back together with her. The phone messages, texts and threats from defendant caused Jane Doe to fear him.
Defendant followed up on his threats to post negative reviews about her and her employer. He sent a complaint to the Dental Board on May 7, posted a first Yelp review on May 27 and posted a second on July 16. Shortly after the second one was posted, Jane Doe lost her job as a dental assistant.
In late May, defendant's texts to Jane Doe turned negative again. He "realized . . . part of the reason you didn't pay me was cause you bought cable. Cable and car were more important than our friendship, honored agreement and my children's well being . . . ." In the early morning of May 25, 2015, defendant, using a pick axe, broke the windows and damaged the body of Jane Doe's car, which was parked outside her apartment complex. He broke all of the windows, slashed all of the metal on the car, slashed one of the tires and took off the rearview mirror. That evening, defendant texted her pictures of her vandalized car, writing "Looks good, sweets, wasn't me." Four days later, he vandalized her brother's car.
On June 1, 2015, Jane Doe, terrified by defendant's escalating conduct, sought a protective order that would bar him from contacting her. A temporary protective order was issued on June 1, 2015. It was still in place on June 23, 2015, when the court held a hearing at which defendant was present. As a result of that hearing, Jane Doe understood that defendant was to have no contact with her after that time. However, he continued to contact her.
The day after the hearing, Jane Doe received a text message from defendant stating "I can't believe you are fighting this" and "I was impressed with your might in court today." Defendant continued to send texts to Jane Doe in the ensuing months, from his number and from other numbers she did not recognize. Despite the different numbers, the content indicated the messages were from defendant. He texted her in June, July, August, October and November. In those messages, defendant offered Jane Doe money, stated he did not want her to testify, stated he would pay $3,000 "for the truth" about what really happened and for "the rest of your troubles," and told her his attorney would bring up "everything." An investigator testified that defendant's phone contained an app called "Anonymous Texting" that allowed him to make it appear messages he sent came from a different phone number.
On August 12, 2015, the court entered the criminal protective order barring defendant from contacting or harassing Jane Doe. In mid-August 2015, defendant left Jane Doe a voicemail she believed was intended to intimidate her and prevent her from testifying. In October 2015 he sent text messages again indicating he did not want her to testify and would give her money.
The voicemail message stated: "It's the opportunity of a lifetime. Your eye witness is going to go ahead and get on the test—, and get on the stand and lie, and it's a felony to do so. And I have evidence that shows they are. Um via You Tube. Heh . . . (Laughs) It's just a surprise, once it happens. Um the other option is that you just go ahead and go the fuck away and take the money that I owe you and pull your money that you owe me. And if you have a boyfriend or something that wants to fucking be a badass and handle it, like, some Xfinity guy, then send him. I'd love to see him. Again. Bye."
On June 6, 2016, the jury found defendant guilty of stalking while a protective order was in place (§ 646.9, subd. (b); count 1), violating a civil protective order (§ 273.6, subd. (a); count 5) and contempt for violating a criminal protective order (§ 166, subd. (c)(1); count 6). The jury hung, and the court declared a mistrial, on the felony vandalism charge and a charge of dissuading a witness. Following a bench trial, the court found the alleged priors and on-bail allegations in count 1 true. At a second jury trial in August 2016, the jury found defendant guilty of felony vandalism (§ 594, subd. (a); count 3).
The court sentenced defendant to six years on count 1, and concurrent one-year county jail terms for counts 5 and 6. It sentenced defendant to four years on count 3, but stayed that conviction under section 654. Defendant timely appealed.
DISCUSSION
I.
Substantial Evidence Supports the Stalking and Protective Order
Violation Convictions.
Defendant contends there is insufficient evidence to support his convictions for violating the civil protective order and for stalking Jane Doe while the protective order was in place. Most of his arguments are predicated on the purported lack of evidence that the protective order prohibited defendant from contacting Jane Doe, which he bases on the fact that the order itself was not admitted into evidence and that there is not substantial evidence of the order's terms.
"In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.] ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.]" ' " (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.)
It is true that the People did not move the civil protective order into evidence. However, the People did offer, and defendant did not object to the admission of, certified copies of the following court records from the civil domestic violence matter: (1) a Judicial Council form document (DV-116) dated June 23, 2015, entitled, "Notice of New Hearing and Order on Reissuance," which states a temporary protective order was issued on June 1, 2015, and orders the protective order to "remain in effect until" the end of a hearing to be held on July 9, 2015; (2) a July 9, 2015 minute order, which states that a hearing was held on that date and Jane Doe and defendant were present and orders the hearing continued until August 20, 2015; and (3) an August 20, 2015 minute order vacating the civil protective order. The People also offered, again without objection from defendant, an August 12, 2015 order from the criminal case entitled "Criminal Protective Order—Domestic Violence," which states a hearing was held on that date at which defendant was personally served with that order and orders defendant to "have no personal, electronic, telephonic, or written contact with [Jane Doe]," including contact "through a third party, except an attorney of record," and not to come within 100 yards of her.
The defendant objected to the admission into evidence of the June 1, 2015 protective order on the ground that there was "an issue with the service." Although the court observed that defendant had filed a response to the protective order request on June 22, 2015, thus indicating he had been served with the order at some point before then, the People removed the protective order itself from the exhibit containing other court records.
All of these documents list Nicholas Stiles as the defendant or person to be restrained but all are redacted to remove Jane Doe's actual name from the designations of plaintiff or protected person. However, when the People offered them in evidence, the prosecutor stated they listed defendant as the restrained party and Jane Doe as the protected party. Defense counsel stated he did not object to admission of these documents and did not dispute that the name redacted from them was that of Jane Doe.
These documents provide substantial evidence that a civil protective order was entered in favor of Jane Doe and against defendant on June 1, 2015, defendant became aware of that order no later than June 23, 2015, and the order remained in effect until August 20, 2015. They also provide substantial evidence that a criminal protective order was entered on August 12, 2015, that prohibited defendant from making any kind of contact with Jane Doe or coming within 100 yards of her.
Further, while these documents alone do not establish that the civil protective order barred defendant from contacting Jane Doe, they are not the only evidence relating to the order. Jane Doe testified that she went to court to get a protective order for the purpose of barring defendant from contacting her. She was "upset" and "scared" by his text messages and his dropping by her home, and after he vandalized her car she was "terrified." On June 1, 2015, she sought a protective order because she "was afraid and [defendant] was in desperate—he was desperate to come in contact with [her]." She did not want to be in contact with him. She sought the protective order to prevent him from contacting her. On June 23, 2015, she went to a hearing about the protective order, at which defendant was present and the order was discussed. Jane Doe understood the order barred defendant from having any contact with her. Yet he contacted her by text the day after the hearing. She reported his contacts to law enforcement. It was her understanding the protective order was still in place at the time defendant left her a voicemail in August 2015.
Jane Doe's testimony is substantial evidence that the civil protective order prohibited defendant from contacting her. Defendant cites no case holding oral testimony about the substance of a document is as a matter of law insufficient to prove its content; nor are we aware of any. The only relevant law we have been able to find is to the contrary. (See Dart Indus., Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 1069, 1075-1077 [re sufficiency of evidence of lost insurance policy; holding proof of contents, word for word, not required and substance of document is all that is required].)
Defendant contends Jane Doe's understanding of the order, because it is that of a "layperson," is not enough for a jury to conclude beyond a reasonable doubt that the order prohibited him from contacting her. We disagree. Defendant's contention would require us to assume that the domestic violence protective order is too complex or opaque in its language for a non-lawyer to understand. We will not make that assumption about the order, and the jury was not required to do so either. The jury could reasonably infer the language in a domestic violence protective order regarding what conduct was prohibited would be clear enough for non-lawyers to understand. Indeed, it could reasonably infer the language in the Judicial Council form used for the civil protective order was similar to that contained in the Exhibit 49, the Judicial Council form criminal protective order issued against defendant in August 2015. The latter order prohibits contact by the defendant in language that can readily be understood by any adult of ordinary intelligence.
Defendant could conceivably have objected to Jane Doe's testimony that she understood the protective order as meaning defendant was to have no contact with her, for example, under Evidence Code section 1523, subdivision (a) (oral testimony generally not admissible to prove content of writing). This might have forced the prosecutor to offer the protective order, but defendant did not object and the testimony came in without limitation.
Regarding the charge of violating the civil protective order, count 5, the jury was instructed that the People had to prove a court issued a written order that the defendant have no contact with and stay away from Jane Doe. Jane Doe's testimony that she sought and obtained a protective order that barred defendant from contacting her is sufficient evidence to support the jury's finding that the court issued such an order. There is ample evidence that defendant contacted Jane Doe repeatedly by text and other means after June 23, 2015, and defendant does not contend the evidence is insufficient to establish the other elements of this count—that he knew of the order, had the ability to follow it and willfully violated it.
Regarding the stalking count, defendant points out that the statute he was convicted of violating, section 646.9, makes it a felony for a person to "willfully, maliciously, and repeatedly follow[] or willfully and maliciously harass[] another person and . . . make[] a credible threat with the intent to place that person in reasonable fear for his or her safety" (§ 646.9, subd. (a)), and imposes greater punishment if the person does so "when there is a temporary restraining order, injunction, or any other court order in effect prohibiting [such] behavior" (id., subd. (b)). The jury was instructed on that count that the People had to prove (1) defendant willfully, maliciously and repeatedly followed another person, (2) defendant made a credible threat with intent to place that person in reasonable fear for her safety, and (3) a domestic violence temporary protective order, and/or a criminal protective order prohibiting the defendant from engaging in this conduct against the threatened person was in effect at the time of the conduct. The jury found the defendant engaged in these acts while subject to a temporary protective order prohibited him from doing so.
Defendant first asserts that if we agree with his contention that the civil protective order was not proven, the only protective order is the criminal protective order issued on August 12, 2015. He contends there was not sufficient evidence that he committed harassing conduct and threatened Jane Doe after that date. Because we have concluded that there is substantial evidence that the civil protective order reissued on June 23, 2015, barred him from contacting Jane Doe, we need not address his argument that the evidence of his conduct after the criminal protective order was issued does not (alone) support a finding that he made a credible threat to Jane Doe with the intent to place her in fear for her safety, thereby violating the stalking statute.
Defendant further contends that even if we conclude there is substantial evidence of a June 23, 2015 protective order barring him from contacting Jane Doe, the evidence of his conduct after that date is also insufficient to support a finding that he engaged in stalking. Defendant points out that much of the evidence of his conduct involved incidents in April and May 2015, prior to issuance of the protective order. This includes defendant's request that she return a television he had given her and repay a loan he had made to her, and his refusal to accept payment from her brother; submission of a letter to the Dental Board making false and humiliating accusations about her work-related conduct; extreme acts of vandalism on her car followed by sending her texts with photos of the damaged car; vandalism of her brother's car; a text to her that he was killing himself along with photographs of his deeply slit wrist; sending a letter to her from the hospital; posting the first of two negative and false reviews on Yelp about the dentist office where she worked; and coming by her home, calling and sending her texts repeatedly in May 2015.
Defendant then proceeds to discuss why certain text messages and a Yelp posting he made after June 23, 2015, did not constitute harassment or threats. He also refers back to the portion of his brief addressing the post-August 12 incidents. That portion includes a discussion of stalking cases that he suggests establish a high threshold for demonstrating a credible threat or harassment. Regarding the cases defendant cites, People v. Halgren (1996) 52 Cal.App.4th 1223 and People v. Falck (1997) 52 Cal.App.4th 287, we have previously observed that neither of these cases "suggest[ed] their particular facts set a floor for a course of conduct constituting an implied threat." (People v. Lopez (2015) 240 Cal.App.4th 436, 451 (Lopez).)
Before addressing defendant's contention that the evidence does not show stalking after the civil protective order was issued, we set forth the law governing stalking. We begin with the relevant statutory definitions. Section 646.9, subdivision (e) defines "harasses" to mean "engages in 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." Section 646.9, subdivision (g) defines "credible threat" in relevant part to mean "a verbal or written threat, including . . . 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 . . . , 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 . . . . It is not necessary to prove that the defendant had the intent to actually carry out the threat. . . .' " (Italics added.) Section 646, subdivision (f) defines "course of conduct" as "two or more acts occurring over a period of time, however short, evidencing a continuity of purpose" and excludes "[c]onstitutionally protected activity."
Consistent with these provisions, the jury was instructed on the required elements of stalking under section 646.9—harassment, a credible threat and the intent to place the targeted person in fear for her safety—and the finding necessary for the penalty provision of subdivision (b) to apply—a domestic violence or criminal protective order in effect at the time of the conduct.
As we recognized in Lopez, supra, 240 Cal.App.4th at page 453, "[t]he absence of overt threats in [a defendant's] communications notwithstanding, the course of conduct in which he engaged" may nonetheless "constitute[] a credible threat within the meaning of section 646.9, subdivision (g): 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.' " (Ibid.) In Lopez, the defendant engaged in a years-long pattern of conduct that included sending the victim unwanted emails, Facebook messages, packages, letters and cards, creating a labyrinth in the image of her face on a hill near where she lived, and repeatedly showing up in the neighborhood where she lived and on a bus she took on her way home. (Id. at pp. 438-445.) The defendant continued in his conduct despite the victim's requests that he stop and caused her to fear for her safety but never overtly threatened to harm her. (Id. at p. 445.) We noted that "the question [was] not whether each individual expression communicated the requisite threat but whether the combination of all [the defendant's] communications, expressions and conduct did so." (Id. at p. 449.)
Defendant's argument here is that none of the specific communications he made after the civil protective order was issued, which he characterizes as "positive in nature," alone or collectively were threatening or harassing; that none reflect an intent on his part "to put Jane Doe in fear when he sent [them]"; and that none of them could reasonably have placed Jane Doe in fear.
Defendant parses the issue too finely. First, he assesses whether each communication in isolation was harassing or threatening, rather than addressing his entire course of conduct after the protective order was issued. Second, he fails to take into account the evidence regarding his previous course of conduct. That earlier conduct provided the context in which Jane Doe viewed his post-protective order messages and communications. Defendant's conduct in May 2015 and the first three weeks of June 2015 understandably scared and ultimately terrorized Jane Doe. That earlier conduct cannot serve as the actus reus of the stalking charge under section 646.9, subdivision (b), because that charge is for stalking while a protective order was present and the evidence does not show defendant had notice of the protective order until June 23, 2015. Nonetheless, defendant's pre-protective order conduct provided important context that the jury was entitled to consider in assessing the intent and effect of defendant's post-protective order contacts with Jane Doe. (See People v. Ogle (2010) 185 Cal.App.4th 1138, 1143 [evidence of defendant's earlier stalking of victim admissible to prove defendant's intent and sustained nature of victim's fear].)
During May 2015, the month leading up to the protective order, defendant behaved like Dr. Jekyll and Mr. Hyde. His messages ranged from obsequious (especially when trying to convince Jane Doe to resume their relationship or to return the television) to hostile and threatening. Even when seemingly contrite, defendant tended to justify his own bullying statements and conduct by blaming Jane Doe. And while his overt threats concerned her ability to earn a livelihood, his extreme violence in vandalizing Jane Doe's vehicle, vandalizing her brother's vehicle, slicing his own wrist down to the bone and blaming her for it, showing up at her home uninvited, obsessively texting her and demanding to know whether she was seeing someone else could have made anyone in her situation reasonably fear for their safety.
As to many of defendant's texts after June 23, 2015, viewed in isolation they were not themselves angry or threatening, but rather, as Jane Doe viewed them, were manipulative, such as those in which he urged her to "let [him] slide on this one" and offered her money in exchange for not testifying or not putting on evidence in her case. However, two of the messages were explicitly, if somewhat opaquely, threatening. In the first, he said, "I really do want the truth though. I'm not the only one who's gonna suffer from lies. I'm willing to procure it by whatever means." He went on to say "if it's cash? good." It is obvious from this message, even if left unsaid, that he was willing to engage in other means if she continued with her plans to testify or have witnesses testify against him. Given his pre-protective order conduct, Jane Doe could reasonably understand defendant to be threatening violent acts.
In the second such message, defendant said, "hey. i gave him all our texts. i don't want to see you attacked. I also don't want to see you testify. It's killing me. i promise I'll make right with no expectations from you. you'll get your cash and I'll stay gone." He went on to explain "my lawyer is gonna bring up everything is what im saying." This allusion to the lawyer cross-examining Jane Doe in a way that would embarrass or hurt her might be the only threat defendant was expressly making, but the reference to not wanting to "see you attacked" could, in light of his earlier conduct, reasonably have been understood to mean more.
Further, defendant's posting of the second Yelp review was not conciliatory; it was vindictive. It falsely alleged that Jane Doe had stolen materials from the office, cursed her coworkers, had sexual relations with him during lunch and then returned to work unbathed, thereby spreading bodily fluids and sexually transmitted diseases to patients, and had worked under the influence of drugs. --------
Besides the implied threats of potential harm to Jane Doe if she testified and presented evidence against defendant, his post-protective order texts reflected a continued obsessive focus on getting back together with Jane Doe. In some, he insisted he would always care about her and would keep "talk[ing]" to her. In others he offered never to talk to her again, said she was "free of him" and said he didn't "need to be friends or anything." But a week after the latter texts, he texted, "i will always be a friend to you" and "let's stay friends. for real. . . . no expectations. no one has to know. maybe in time or whatever. . . . I mean what I say. we should be friends after this. . . . I just want to be friends." He later reiterated that he "want[ed]" her and "miss[ed]" her and urged her "don't let me go. stick up, stand for me for one more time and don't let me go." He begged her to call him, claimed he was killing himself, said "every day hurts so much" and "you shouldn't hurt me any more. i don't like it." He denied vandalizing her car and claimed someone had vandalized his.
Both by telling defendant so and by obtaining a civil protective order, Jane Doe made it perfectly clear in June 2015 that she did not want to have contact with him. Defendant brazenly defied her requests and the court's order, and did so repeatedly. He continued to demonstrate his continued obsession with her even as he offered to pay her and "stay gone" if she would not testify and "let [him] slide." He carried through on a threat to post a Yelp review that put her job in jeopardy. He insisted she was hurting him. And he obliquely threatened her with harm if she testified and pursued the criminal case. In view of this evidence, and in light of defendant's prior escalating and violent acts damaging her property and inflicting harm on himself, the jury could reasonably conclude that defendant's post-protective order course of conduct was intended to be and was in fact harassing and that it presented a credible threat that put Jane Doe in reasonable fear for her safety.
In short, defendant's substantial evidence argument lacks merit. Having reached that conclusion, we need not address defendant's further argument that the lack of substantial evidence violated his federal due process rights.
II.
The Trial Court Erred in Sentencing Defendant to Concurrent Terms for Stalking
While a Protective Order Was in Place (Count 1) and
Violating the Protective Orders (Counts 5 and 6).
The trial court sentenced defendant to the mid-term of three years on the stalking count, which was doubled to six based on a prior strike conviction. It stayed the sentence on the felony vandalism conviction under section 654, but on the two misdemeanor charges for violating the civil and criminal protective orders sentenced him to a concurrent one-year term for each.
Defendant contends the trial court violated section 654 by imposing a term for stalking and then sentencing him to concurrent terms for violating the two protective orders, and that it should instead have stayed the misdemeanor sentences. The People disagree.
Section 654 provides in relevant 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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other." (§ 654, subd. (a).) When section 654 prohibits multiple punishment, " 'the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited.' " (People v. Sanders (2012) 55 Cal.4th 731, 743.)
" ' "Section 654 has been applied not only where there was but one 'act' in the ordinary sense . . . but also where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654." ' " (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) "Section 654 bars multiple punishment for separate offenses arising out of a single occurrence [or course of conduct] where all of the offenses were incident to one objective." (People v. McKinzie (2012) 54 Cal.4th 1302, 1368, disapproved on another ground in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3.)
The People argue that concurrent sentences on the protective order violation convictions were warranted because the third amended information alleged specific dates for each of the charged offenses, including stalking between May 14 and November 28, 2015, disobeying a civil protective order on or about June 25, 2015, and violating a criminal protective order on or about August 17, 2015. The problem with this argument is that the People's theory at trial in regard to the latter two counts was predicated on conduct that it also included in the course of conduct it told the jury was proof of stalking. Specifically, in arguing violation of the civil protective order, the prosecutor focused on the fact that within 24 hours of the June 23, 2015 hearing at which defendant was given notice of that order, he texted Jane Doe. Similarly, in arguing violation of the criminal protective order, the prosecutor relied on the August 17, 2015 voicemail defendant left for Jane Doe. In his argument supporting the stalking charge, the prosecutor cited those very same acts, albeit along with others, as part of a "course of conduct" involving "[r]epeated communications with Jane Doe" "in violation of the restraining orders."
Not only was the conduct that was used to support the protective order violation charges expressly part of the same course of conduct for which defendant was convicted of stalking, but the People point to no evidence, and we are aware of none, that the defendant's violation of the protective orders had an objective distinct from stalking Jane Doe through the same and additional communications. In these circumstances, we conclude the trial court erred in sentencing defendant concurrently on the protective order charges rather than staying the sentence under section 654.
DISPOSITION
The concurrent sentences on counts 5 and 6 are stayed pursuant to section 654. The trial court is directed to prepare an amended abstract of judgment reflecting these modifications and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
RICHMAN, J.