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People v. Tena

Court of Appeals of California, Second Appellate District, Division Five.
Nov 20, 2003
No. B160533 (Cal. Ct. App. Nov. 20, 2003)

Opinion

B160533.

11-20-2003

THE PEOPLE, Plaintiff and Respondent, v. TONY K. TENA, Defendant and Appellant.

Gerald Peters, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, William T. Harter, Supervising Deputy Attorney General, and Ellen Birnbaum Kehr, Deputy Attorney General, for Plaintiff and Respondent.


INTRODUCTION

Defendant and appellant Tony K. Tena appeals from a judgment following a trial in which the jury found him guilty of stalking while a restraining order was in effect (Pen. Code, § 646.9, subd. (b)), corporal injury to a cohabitant (& sect; 273.5, subd. (a)), and shooting at an inhabited dwelling (& sect; 246). The trial court sentenced defendant to 21 years in prison after the court found to be true allegations that defendant had suffered a prior conviction for a serious or violent felony within the meaning of the Three Strikes Law and had committed an offense resulting in a felony conviction within five years after serving a prison term within the meaning of section 667, subdivision (a)(1). On appeal, defendant raises issues only with respect to his conviction for stalking. Defendant contends that (1) there was insufficient evidence that he was personally served with the restraining order at issue, (2) the trial court committed Apprendi error by removing from the jurys deliberation the issue of whether there had been valid personal service of the restraining order, (3) the trial courts determination that service of the restraining order was valid personal service was erroneous, (4) the trial court had a sua sponte duty to instruct the jury regarding the effective dates of the restraining order, and (5) the sentence on the stalking conviction should have been stayed under section 654. We affirm the judgment.

All further statutory references are to the Penal Code unless otherwise indicated.

References to the Three Strikes Law are to Penal Code sections 667, subdivisions (b) through (i), and 1170.12, subdivisions (a) through (d). (See People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 973 & fn. 1.)

Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi).

BACKGROUND

We state the evidence in the light most favorable to the jurys verdict. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Defendant and his girlfriend, Shawn Damoude (Damoude) had lived together for more than two and a half years when, on October 28, 2001, they had a violent fight. During the fight, defendant punched Damoude several times in the face and threatened to blow up her car. Damoude left their apartment and went to the hospital, where she was treated for several injuries, including a black eye and swelling to various parts of her face. She did not return to the apartment she shared with defendant; instead, she stayed at a hotel overnight, and then stayed with her mother, Sandra Stevens (Stevens), for a few nights until, concerned that defendant would look for her at her mothers apartment, she moved to her fathers house.

All further references to dates are to the year 2001 unless otherwise indicated.

On October 30, Damoude obtained a temporary restraining order, prohibiting defendant from having any contact with, harassing, or coming within 100 yards of Damoude or Stevens. The temporary restraining order was in effect until November 20, the date set for hearing on a permanent restraining order.

On November 2, Los Angeles County Deputy Sheriff Gary Gray (Gray) went to defendants apartment building to serve defendant with the temporary restraining order. Gray, who was in uniform, was directed to defendants apartment on the fourth floor of the building. As he was walking down the hall on the fourth floor, toward defendants apartment, he saw a man walking toward him. The man stopped about 50 feet from Gray. Gray asked the man if he was Tony Tena, but the man did not respond. When Gray told the man that he had a restraining order for him, the man turned and walked back in the direction of defendants apartment (the door to the apartment was in an alcove and could not be seen from Grays position). Gray walked in the same direction, and as he got to the alcove the door to the apartment had just closed. Gray knocked on the door to defendants apartment and said, "Mr. Tena, I know youre in there. Please come back out and open the door." Although no one responded to Grays knocks, Gray knew there was someone on the other side of the door because he could see shadows across the peephole in the door and could hear someone brushing against the door. After getting no response despite repeated knocking, Gray said, "Mr. Tena, I believe that that was you I saw. I have a restraining order. Be sure to read it. See what youre restrained from. You are considered served." He folded the restraining order in half, stuck it in the crease of the door and walked away.

Although Gray testified that there was only one door to an apartment in the alcove, evidence was admitted at trial showing there were two doors.

Between the first week of November and the first week of December, defendant called Stevens home almost every day, asking to speak to Damoude. Defendant also drove by Stevens home at least once a day, and on several occasions he stopped at Stevens home to speak to Stevens or to leave items for Damoude. Each time defendant spoke to Stevens, Stevens told him that there was a restraining order against him prohibiting him from having any contact with her or with Damoude.

On November 13, defendant drove with a friend to Damoudes place of employment, Pepperdine University, to speak with Damoude. Damoude told him that he was not supposed to be there, and she called Pepperdines public safety office. An officer responded to her call and told defendant that he was in violation of a restraining order. Defendant told the officer that he had not been served with the restraining order, but he complied with the officers request that he leave the school grounds.

Stevens and defendant had an argument over the telephone on December 4. A short while later, Stevens was decorating her Christmas tree, near the front window of her apartment. As she walked away from the tree, she heard a "boom" and saw dust everywhere. She went to the back door and saw defendants truck parked outside, and saw a man in the truck, closing the door to the truck and driving away. A police officer who responded to Stevens call to the police department examined the scene and concluded that someone had fired a shotgun at Stevens apartment. Based upon Stevens identification of defendants truck at the scene, defendant was arrested the following morning. During an interview with a detective, and after waiving his Miranda rights, defendant admitted that he drove by Stevens home and called her at least once a day and that he had gone to Pepperdine to see Damoude, but he denied shooting at Stevens house. Defendant also admitted that there was a restraining order against him, but he told the detective that he had not been properly served with the order.

Miranda v. Arizona (1966) 384 U.S. 436.

Defendant also presented witnesses at trial to testify that he was at a club at the time of the shooting.

Defendant was charged with and convicted of stalking in violation of a restraining order (count 1), corporal injury to a cohabitant (count 2), and shooting at an inhabited dwelling (count 4), and was sentenced to a total of 21 years in prison, computed as follows. On count 4, the trial court imposed the upper term of seven years, doubled under the Three Strikes Law, plus a five-year enhancement under section 667, subdivision (a)(1), for a total of 19 years on count 4. The court then imposed a consecutive sentence of two years (one-third the midterm of three years, doubled under the Three Strikes Law) for count 2, and a concurrent sentence of six years (the midterm of three years, doubled under the Three Strikes Law) for count 1. Defendant filed a timely appeal from the judgment.

DISCUSSION

A. Findings and Instructions Regarding Service of the Restraining Order

The statute governing the crime of stalking, section 646.9, imposes an increased penalty if the person found to violate the statute does so when a restraining order prohibiting the conduct at issue is in effect. Although in this appeal defendant challenges his conviction and sentence for stalking, his contentions related to the conviction are limited to issues concerning the restraining order. Those contentions relate to the requirement in section 646.9, subdivision (b) that the restraining order must be "in effect" at the time of the stalking conduct. Defendant contends that (1) there was insufficient evidence for a jury to find beyond a reasonable doubt that he was personally served with the restraining order, (2) the trial court improperly removed from the jurys deliberation the issue of whether there had been valid personal service of the restraining order, (3) the trial courts determination that service of the restraining order was valid personal service was erroneous, and (4) the trial court had a sua sponte duty to instruct the jury regarding the effective dates of the restraining order. Underlying the first three of those contentions is defendants premise that the restraining order was not "in effect" until it was personally served on defendant. (But see Fam. Code, § 6224 [requiring restraining order to state that the order "is effective when made"].) The People do not contest defendants premise, but contend that there was sufficient evidence to support the jurys verdict and that the trial court did not err in its determination that the service was valid personal service or in its instructions to the jury regarding service of the restraining order. The People are correct.

Section 646.9, subdivision (a) provides: "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 the 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." Subdivision (b) of that statute provides for imprisonment in the state prison for two, three, or four years for 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."

1. Identity of Defendant as the Person Served

Defendant contends there was insufficient evidence to establish beyond a reasonable doubt that defendant was the person served with the temporary restraining order because Gray, the deputy who served the order, could not positively identify defendant as the person he served, and because Gray testified that the apartment he identified as defendants was in an alcove with only one door despite evidence that there were doors to two apartments in the alcove. Thus, defendant argues, there is only a 50 percent probability that the man Gray attempted to serve was defendant, and under People v. Allen (1985) 165 Cal.App.3d 616, 626, a 50 percent probability is insufficient to establish guilt.

"The [substantial evidence] standard of review is well settled: On appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] `"[I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder." [Citation.] `The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] "Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendants guilt beyond a reasonable doubt." [Citation.]" (People v. Snow (2003) 30 Cal.4th 43, 66.)

When testifying about how he served the temporary restraining order, Deputy Gray was asked whether the man he served was in the courtroom. Gray testified that defendant "appears to resemble the person," but he could not say "that was positively him" because the man he saw in the hallway outside defendants apartment was 50 to 55 feet away from him before the man turned and disappeared into an alcove. Nevertheless, he described the man he saw as approximately five foot, eight inches tall, slender to medium build, with dark hair and a moustache. The booking photo from defendants arrest a month after Gray served the restraining order shows that defendant had short dark hair and a moustache, and lists his height as five foot, nine inches and his weight as 160 pounds. Moreover, despite Grays apparently mistaken testimony that there was only one door in the alcove into which the man disappeared, Gray testified that the door to the apartment the man entered had defendants apartment number on it, and Gray could tell that there was someone standing behind that door. Although defendant testified that he was not at the apartment on November 2 because he was living with his father for several days starting October 28, the jury apparently did not find defendants testimony credible. (See People v. Snow, supra, 30 Cal.4th at p. 66 [credibility determination is a matter left to the trier of fact].) Because the jury reasonably could conclude beyond a reasonable doubt, based upon Grays testimony, that defendant was the man Gray served with the restraining order, we hold that there was substantial evidence to support the jurys stalking verdict.

The jury may have believed defendants father, who testified that defendant did not stay with him until the middle or end of November. Moreover, evidence was presented that defendant received at least one parking ticket in front of his apartment building during the period he claimed to have been staying with his father.

2. Apprendi Error

In Apprendi, supra, 530 U.S. at page 490, the United States Supreme Court held that any fact that increases the prescribed range of penalties to which a criminal defendant is exposed must be submitted to a jury and proved beyond a reasonable doubt. Under Californias stalking statute, a defendant is exposed to one range of penalties if the defendant commits certain acts, but is exposed to an increased range of penalties if those acts are committed while a restraining order is in effect. Thus, under Apprendi, the question of whether a restraining order was in effect at the time of the stalking conduct must be submitted to a jury and proved beyond a reasonable doubt.

The trial court in this case instructed the jury with CALJIC No. 9.16.2 (1999 Revision), which provides in relevant part: "In order to prove this crime, each of the following elements must be proved: [¶] 1. A person willfully, maliciously, and repeatedly followed or harassed another person; [¶] 2. The person following or harassing made a credible threat; [& para;] 3. The person who made the threat did so with the specific intent to place the other person in reasonable fear for her safety or the safety of the immediate family of such person; [& para;] 4. A court had previously issued a temporary restraining order, injunction, or any other order prohibiting that behavior against the same other person; and [¶] 5. The temporary restraining order, injunction, or other court order was in effect at the time of the conduct described in elements 1, 2 and 3." In addition, the trial court gave the following special instruction to the jury: "In Count 1, namely Stalking Following a Court Order in violation of Penal Code section 646.9(b), you must accept as a matter of law that there was personal service of a Temporary Restraining Order upon a person. However, the burden is on the People to prove beyond a reasonable doubt that the defendant is the person that was served with the Temporary Restraining Order."

Defendant contends that his stalking conviction must be reversed because the trial court violated the holding in Apprendi by instructing the jury that there was personal service of the restraining order upon someone, because that instruction removed from the jury "a significant portion" of the question of whether a restraining order was in effect at the time defendant committed the acts at issue. We disagree.

Before conducting an Evidence Code section 402 hearing on whether the manner in which Gray served the temporary restraining order constituted valid personal service, the trial court asked whether this was an issue for the jury to decide. The prosecutor argued that the question regarding the manner of service (as opposed to the identity of the person served) was a legal question for the court to decide. Counsel for defendant did not respond to the trial courts question or the prosecutors argument and instead argued only that the manner of service did not constitute personal service. The trial court agreed with the prosecutor and, after determining that the manner of service was sufficient, drafted a proposed special jury instruction on the issue. Before giving the special instruction to the jury, the trial court provided a copy to the prosecutor and defense counsel. Both counsel agreed that the court could give the instruction to the jury; indeed, defense counsel told the court, "Thank you. Its perfect for me." Moreover, in her closing argument defense counsel told the jury, "We have a very good jury instruction. [¶] The issue here is not whether there was a valid service of a restraining order. The issue is who was served." Therefore, even if the instruction was improper, defendant waived any error arising from it. (People v. Marchand (2002) 98 Cal.App.4th 1056, 1060-1061 [failure to assert Apprendi error in trial court waives the assertion of such error on appeal].)

In any event, as discussed in section A.3., post, the trial court correctly determined the legal question of whether, if defendant was the man Gray saw in the hallway, there was valid personal service, and left to the jury the factual determination of whether defendant was the person Gray served. Therefore, the special instruction did not result in error under Apprendi, supra, 530 U.S. at page 490.

3. Validity of Service

Before trial, the court conducted an Evidence Code section 402 hearing, at which Gray testified, to determine whether the manner in which Gray served the restraining order constituted personal service. Grays testimony from that hearing was then read to the jury at trial and is summarized above. The trial court found and instructed the jury that the service Gray effected was valid personal service of the temporary restraining order. Defendant contends on appeal that the trial courts finding was erroneous because personal service must be accomplished by actual delivery to the person who is to be served unless that person evaded service, and there is insufficient evidence that defendant attempted to evade service.

Defendant is correct that personal service ordinarily requires actual physical delivery of the documents at issue to the person sought to be served. (Code Civ. Proc., § 415.10.) But it is well established that a person "will not be permitted to defeat service by rendering physical service impossible." (Khourie, Crew & Jaeger v. Sabek, Inc. (1990) 220 Cal.App.3d 1009, 1013.) For example, in In re Ball (1934) 2 Cal.App.2d 578, a process server approached a man who the process server had previously served with legal documents and told him he had another document for him. The man refused to take the document from the process server and started to walk away. The process server tossed the document toward the man and told him that he was served, but the man refused to pick up the document. The Court of Appeal held that the man was personally served, observing that "when men are within easy speaking distance of each other and facts occur that would convince a reasonable man that personal service of a legal document is being attempted, service cannot be avoided by denying service and moving away without consenting to take the document in hand." (Id. at p. 579.)

In this case, Gray testified that he saw a man who resembled defendant in the hallway outside of defendants apartment. When he asked the man if he was Tony Tena and told him that he had a restraining order for him, the man turned, walked back and into defendants apartment, and would not open the door to allow Gray to give him the documents Gray was attempting to serve. This testimony is substantial evidence that the man knew that Gray was attempting to serve him with a legal document, and he attempted to avoid service by refusing to take the document. Therefore, there is sufficient evidence to support the trial courts legal conclusion that the service was valid personal service.

4. Duty to Instruct on Effective Date of Restraining Order

Defendant contends that his stalking conviction must be reversed because the trial court did not instruct the jury regarding the effective dates of the temporary restraining order and because the court did not instruct the jury to determine whether the permanent restraining order was served on defendant. Defendant waived this purported error by failing to request any such instructions. (People v. Dennis (1998) 17 Cal.4th 468, 514 ["If defendant believed the instructions were incomplete or needed elaboration, it was his obligation to request additional or clarifying instructions. [Citation.] His failure to do so waives the claim in this court"].) In any event, there was no prejudicial error.

As set forth in section A.2., ante, the trial court instructed the jury that in order to find defendant guilty of violating section 646.9, subdivision (b), it must find that defendant committed the relevant acts while a restraining order was in effect. No additional instruction on the effective dates of the temporary restraining order was necessary because, contrary to defendants assertion, a copy of the temporary restraining order that was served on defendant was admitted into evidence—as Peoples Exhibit 5, not Peoples Exhibit 1. That exhibit shows that the temporary restraining order was in effect from October 30 until November 20, at 8:30 a.m., when a hearing would be held on Damoudes application for a permanent restraining order.

After Grays testimony was read to the jury, counsel stipulated that the exhibit Gray referred to as Peoples 1 in the Evidence Code section 402 hearing is the trial exhibit admitted as Peoples Exhibit 5.

The trial courts failure to instruct the jury that it must determine whether the permanent restraining order was served on defendant, even if error (an issue we need not decide), was harmless because there was sufficient evidence of the stalking during the pendency of the temporary restraining order. Defendant admitted to the detective who interviewed him following his arrest that, after Damoude moved out of his apartment on October 28 following their violent fight, he drove by Stevens apartment and called Stevens asking to speak to Damoude virtually every day. Defendant admitted at trial that he drove by and called Stevens apartment, although he testified that he did not do so every day. The time period during which this conduct took place included the period when the temporary restraining order was in effect (i.e., October 30 through November 20). Although there was evidence that defendant also engaged in the same and similar conduct after the temporary restraining order had expired (such as leaving parking tickets at Stevens apartment, sending letters to Damoude from jail, and shooting at Stevens apartment), there is sufficient evidence of stalking conduct while the temporary restraining order was in effect to support the jurys verdict. Moreover, it is highly unlikely that the jury believed the evidence regarding the post-temporary restraining order conduct but disbelieved the evidence—including defendants admission—regarding the conduct that took place from October 30 to November 20 when the jury found that defendant violated section 646.9, subdivision (b). Therefore, if there was error arising from the trial courts failure to instruct regarding service of the permanent restraining order, any such error was harmless.

B. Stay Under Section 654

Section 654 prohibits multiple punishment for a single act or omission, even when that act or omission violates more than one statute and thus constitutes more than one crime. Thus, although a defendant may be charged with and convicted of multiple crimes arising from a single act, the defendant may be sentenced only on the crime carrying the highest punishment; the sentence on the other counts arising from the same act must be stayed. (People v. Liu (1996) 46 Cal.App.4th 1119, 1134.) Here, defendant contends that his acts of stalking Damoude and shooting at Stevens apartment were incidental to a single objective and therefore he cannot be sentenced on both counts. We disagree.

Section 654, subdivision (a), 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."

The Supreme Court has explained that "`[t]he proscription against double punishment in section 654 is applicable where there is a course of conduct which . . . comprises an indivisible transaction punishable under more than one statute. . . . The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one." (People v. Coleman (1989) 48 Cal.3d 112, 162.) But if the defendant "harbored `multiple criminal objectives, which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, `even though the violations shared common acts or were parts of an otherwise indivisible course of conduct." (People v. Harrison (1989) 48 Cal.3d 321, 335.) The question of whether a defendant harbored multiple objectives within the meaning of section 654 is a question of fact, and we will affirm if there is substantial evidence to support the trial courts implicit finding that defendant in this case harbored different objectives with regard to counts 1 and 4. (Id.; People v. Coleman, supra, 48 Cal. 3d at p. 162; People v. Liu, supra, 46 Cal.App.4th at p. 1134-1135.)

There was evidence in this case that defendant fired a shotgun at Stevens apartment shortly after he and Stevens argued over the telephone. The shotgun apparently was aimed at the front window of the apartment, where Stevens had been standing only seconds earlier. Thus, there was substantial evidence that defendants objective when shooting at the apartment was to injure or frighten Stevens. By convicting defendant of stalking, however, the jury necessarily found that defendant intended to place Damoude in fear for her safety or the safety of her immediate family. (See CALJIC No. 9.16.2 (1999 Revision) [jury must find that defendant made a threat against Damoude "with the specific intent to place [Damoude] in reasonable fear for her safety or the safety of [her] immediate family. . ."].) Therefore, there was substantial evidence to support the trial courts implicit finding that defendant harbored different objectives with regard to these two offenses.

DISPOSITION

The judgment is affirmed.

We concur, TURNER, P.J., ARMSTRONG, J.


Summaries of

People v. Tena

Court of Appeals of California, Second Appellate District, Division Five.
Nov 20, 2003
No. B160533 (Cal. Ct. App. Nov. 20, 2003)
Case details for

People v. Tena

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. TONY K. TENA, Defendant and…

Court:Court of Appeals of California, Second Appellate District, Division Five.

Date published: Nov 20, 2003

Citations

No. B160533 (Cal. Ct. App. Nov. 20, 2003)